BRITTON v. JOHNSON-McQUITY MOTOR CO.

BRITTON v. JOHNSON-McQUITY MOTOR CO.
1926 OK 514
251 P. 74
120 Okla. 221
Case Number: 16795
Decided: 06/01/1926
Supreme Court of Oklahoma

BRITTON
v.
JOHNSON-McQUITY MOTOR CO.

Syllabus

¶0 1. Replevin -- Judgment for Plaintiff's Claim and Return of Property Erroneous Where Redelivery Bond Given.
In an action of replevin to recover possession of an automobile for the purpose of foreclosing a lien, where the defendant had given a redelivery bond and retained possession, it was error to enter judgment against defendant for the amount of plaintiff's claim, and, in addition thereto, for a return of the automobile.
2. Evidence--Parol -- Incomplete Written Contract.
Where an oral contract is partially reduced to writing, and the writing evidencing it is not a complete and final statement of the entire transaction, parol evidence not inconsistent with such written contract is admissible to show the full agreement.

R. A. Howard, for plaintiffs in error.
Ledbetter & Brown, for defendant in error.

ESTES, C.

¶1 Parties will be referred to as they appeared in the trial court, inverse to their order here. The motor company sued Britton in replevin for two automobiles, claiming the right of possession by reason of special interest under a chattel mortgage given to secure a certain note, the mortgage and note being exhibited, alleging that the value of the property was $ 450, and prayed judgment for return thereof or their value in the sum of $ 376.28. By answer, Britton admitted the execution of the note and pleaded recoupment against same for damages in the sum of $ 300 for defective workmanship and material in one of the cars purchased by him from plaintiff, and also alleged that at the time defendant purchased such car, it was agreed that in the event the selling price of said car should be reduced within 12 months thereafter, defendant should receive the benefit thereof, and the note sued upon should be credited with the amount of such reduction; that such car was so reduced within such year in price by $ 300, and that defendant was entitled to credit for the same, and prayed for costs, and that plaintiff takes nothing. Plaintiff introduced its note and mortgage and rested without adducing any special proof of the value of the car. On the first said offset claimed by defendant--defective material and workmanship--the court, on evidence of defendant, allowed $ 65, no complaint being made in this behalf. The court refused to admit defendant's evidence tending to sustain the second ground of offset--the claim for $ 300 for such reduced price--on the ground that the same was in contravention of the parol evidence rule. The cause was tried to the court without the intervention of a jury. The court rendered judgment--

"That the plaintiff do have and recover of and from the said defendant, J.H. Britton, the sum of $ 395.18 and costs of this action accrued and accruing. It is further ordered by the court that an order of execution issue, commanding the sheriff of this court to take such property (describing same) and commanding said sheriff to deliver and return the same to the plaintiff, if he, the said sheriff, can find the same in the possession of defendant, J. H. Britton."

¶2 The property was in the possession of the defendant under his redelivery bond. Plaintiff pleaded a cause in replevin--not for foreclosure of his mortgage in equity. It is elementary that replevin is a possessory action, notwithstanding its scope is such that certain equities between the parties may be adjusted therein. The statute is that judgment for plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and damages for the detention, if any. Said judgment is erroneous. The fourth paragraph of syllabus in DeGroff v. Carhart et al., 97 Okla. 145, 223 P. 180, is:

"In an action of replevin to recover possession of an automobile for the purpose of foreclosing a lien, where the defendant had given a redelivery bond and retained possession, it was error to enter judgment against the defendant for the amount of plaintiffs' claim, and in addition thereto, for a return of the automobile or its value."