Harris v. Northwest Motor Co.

Citations

• 116 Wash. 412
• 199 P. 992
• 1921 Wash. LEXIS 963

Syllabus

<p>Election of Remedies (3)—Acts Constituting Election—Mistake in Remedy. There was no election of remedies by a purchaser’s action to recover from the' seller the price of a car, wrongfully sold by the seller’s agent, who was clothed with apparent authority to sell, which would bar plaintiff’s subsequent action of replevin against defendant, who had seized the car as his own; since the doctrine of election of remedies applies only in case of the pursuit of inconsistent remedies against the same party and not in case of a mistake in originally bringing action against the wrong party.</p> <p>Evidence (104)—Hearsay—Statements by Other Than Parties or Witnesses—Ownership of Property—Competency. In an action of replevin for an automobile, the declaration of the seller of the car, a former owner, that he was not the owner at the time he made the sale to plaintiff, but would repurchase it and turn it over to him, was inadmissible in evidence against plaintiff, though made in his presence, where there was no showing that plaintiff acquiesced in the statement and intended to be bound thereby.</p> <p>Principal and Agent (34-42)—Authority of Agent—Evidence— Sufficiency. An automobile sales agent’s real or apparent authority to sell second-hand cars, which was denied by defendant, was properly a question for the jury, in an action of replevin, where the evidence showed defendant conducted two departments, one for the sale of new cars and the other for the sale of second-hand cars; that the agent had received a second-hand car as part payment on the sale of a new car and had placed the former in the proper department, from which he sold it without accounting to the defendant; that the agent advertised a second-hand car for sale from his residence, and an inquiry at such place resulted in an authorized representative of defendant calling at the prospective purchaser’s place of business, and stating that the sales agent made a practice of advertising from his residence as a more