State ex rel. Isaacson v. Trimble

• Citation: 72 S.W.2d 111,335 Mo. 213
• Decision Date: 17 May 1934
• Docket Number: 31009
• Parties: State of Missouri at the Relation of Lester O. Isaacson, Doing Business as St. Joseph Truck and Tractor Company, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

72 S.W.2d 111

335 Mo. 213

State of Missouri at the Relation of Lester O. Isaacson, Doing Business as St. Joseph Truck and Tractor Company, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals

No. 31009

Supreme Court of Missouri

May 17, 1934

Record quashed.

Randolph & Randolph for relator.

The court erred in granting a new trial on the ground of error in the refusal of defendant's Instructions B and C. Because the chattel mortgage on which this action is based is legal and valid on its face, and was given in consideration of the compromise and settlement of a former replevin suit between the same parties, and is therefore, supported by the best consideration. Wood v. K. C. Home Tel. Co., 223 Mo 564; Reinhart v. Bills, 82 Mo. 538; Stephens v Spiers, 25 Mo. 390; Livingstone v. Dugan, 20 Mo. 102; Reilly v. Chouquette, 18 Mo. 226; Mullanthy v. Riley, 10 Mo. 495. Because defendant in defense of this suit cannot raise disputed issues of fact (as hypothecated in Instruction C), that were compromised and settled by settlement of a former lawsuit between the same parties. Rivers v. Blom, 163 Mo. 442; Draper v Owsley, 15 Mo. 616.

Fitzsimmons C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer by reassignment. It is certiorari to the Kansas City Court of Appeals. The question before us is whether there is conflict between controlling decisions of this court and the opinion of the Court of Appeals in the case of Lester O. Isaacson (plaintiff and appellant) v. Elvis W. Van Gundy (defendant and respondent) reported in 48 S.W.2d 208. The facts and the questions of law upon appeal are thus stated in the opinion (Isaacson v. Van Gundy, 48 S.W.2d 208):

"This is an action in replevin to recover the possession of three motor trucks. There was a verdict and judgment in favor of plaintiff. The court granted defendant a new trial on the ground that it erred in refusing to give defendant's peremptory instruction at the close of all the testimony and in refusing defendant's Instruction C. Plaintiff has appealed.

"The facts show that defendant, who lived at Fairfax, was engaged in the trucking business; that on July 24th, 1928, or August 2nd of that year, defendant purchased of plaintiff a GMC truck. This truck had formerly been owned by one Sie Rolston of Ravenwood and was registered in his name. When plaintiff purchased the truck from Rolston the certificate of title was properly assigned and delivered to the plaintiff by Rolston. This certificate was duly assigned to the defendant by the plaintiff and delivered to him on or about August 2nd, 1928.

"Defendant gave plaintiff a chattel mortgage in the sum of $ 2,190 upon the truck, dated July 24th, 1928. Defendant having failed to make the payments provided in the mortgage plaintiff brought a replevin suit and took possession of the truck under the writ of replevin issued therein. The evidence shows that this replevin suit was brought 'under this mortgage.' Thereafter and while said suit was pending on April 9th, 1929, the suit was compromised and the parties entered into a written agreement by which the suit was dismissed and defendant gave plaintiff a note in the sum of $ 2,190, and to secure the note executed a chattel mortgage upon said truck and two other trucks. Defendant failed to pay certain installments falling due under the terms of this last mentioned mortgage and this suit was instituted to recover possession of the trucks mentioned in said mortgage.

"One of the main controversies in the case is whether or not the statute concerning the sale and transfer of motor vehicles was complied with at the time of the sale of the GMC truck to defendant. This statute provides that unless at the time of the delivery of a motor vehicle there shall pass between the parties a certificate of ownership with an assignment thereof the sale 'shall be fraudulent and void.'" [See Laws 1927, p. 313.] It is well settled that unless the certificate is assigned and passed to the buyer of the motor vehicle at the time of its delivery the sale is absolutely void and no title to the vehicle passes. [State ex rel. v. Cox, 306 Mo. 536; Sullivan v. Gault, 299 S.W. 1116; Mathes v. Westchester Fire Ins. Co., 6 S.W.2d 66.]

"It is the contention of the plaintiff that the undisputed testimony shows that the sale was completed in St. Joseph on August 2nd; that at that time the certificate of title duly assigned was delivered by plaintiff to defendant. Defendant contends that the undisputed testimony tends to show that the sale and delivery of the truck was had at Fairfax on the evening of July 24th, 1928, and, it being admitted that the certificate of title was not delivered until August 2nd, the statute was not complied with. Therefore, it is claimed that the settlement of the first replevin suit having grown out of the prior illegal contract and mortgage and this illegal contract and mortgage, being the foundation of the first replevin suit out of which the contract of settlement grew, there was no valid consideration for the latter and the chattel mortgage, upon which this suit is based, is void and plaintiff cannot maintain the action."

The Court of Appeals, in its opinion, then stated at length the substance of the evidence touching the question whether the sale was completed and the certificate of title delivered at the same time or at different times. The Court of Appeals reached the following conclusion upon the review of the evidence: "Therefore, there being conflict in the testimony as to whether or not the certificate of title was delivered to defendant at the time of the delivery of the truck, the court did not err in submitting the case to the jury." In other words, the Court of Appeals held that the trial court did err in assigning as one of its reasons for granting to defendant Van Gundy a new trial its failure to give defendant's peremptory instruction at the close of all the testimony.

Upon the other assigned ground of new trial, the Court of Appeals held:

"However, we do think that the court erred in refusing to give defendant's Instruction C which sought to submit to the jury the question as to whether or not the certificate of title was delivered at the time of the delivery of the truck. For this reason the action of the court in granting a new trial must be sustained."

These rulings of the Court of Appeals upon the two assigned grounds for granting a new trial are not directly involved in the question of conflict raised by certiorari. But these rulings, based as they are upon the facts stated by the Court of Appeals bear heavily upon the issue presented to us. For the Court of Appeals affirmed the order of the trial court, granting a new trial to defendant, for the reason that "the second chattel mortgage upon which this suit is based is void under the circumstances." And relator, Isaacson (whom we will call plaintiff) grounds these proceedings in certiorari upon an asserted conflict between decisions of this court upon the law of compromise and settlement and the opinion of respondents in the instant case. The Court of Appeals thus disposed of the question of compromise in its opinion:

"Plaintiff further contends that the illegality of the transaction, if any, wherein the truck was sold to the defendant does not inhere in the settlement had after the institution of the first replevin suit; that 'any settlement of that suit between the parties is based on a new and good consideration and the note and chattel mortgage defendant gave at that time are valid and subsisting obligations.' The written agreement evidencing the settlement of the suit recites that the truck was sold by plaintiff to defendant on July 24th, 1928; that at that time a note and chattel mortgage in the sum of $ 2190 was given to the plaintiff by defendant; that as installments due upon the note had not been paid, plaintiff had instituted a replevin suit for the truck, 'and whereas certain differences and contentions have arisen between the parties hereto because of the aforesaid transaction and the aforesaid lawsuit. Now, therefore, in order to settle the aforesaid differences and the aforesaid lawsuit and all matters of difference existing between the parties hereto, it is agreed between the parties as follows.' The agreement then recites that the defendant was to execute a new note in the sum of $ 2190 payable in installments, 'in lieu of the promissory note' given on July 24, 1928, and a chattel mortgage to secure said note covering the truck in question together with two other trucks; that plaintiff was to dismiss the suit and surrender to the defendant his note and chattel mortgage dated on July 24, 1928, and that in addition, plaintiff was to furnish or pay for certain repairs upon the GMC truck. . . .

"There can be no question but that the second chattel mortgage upon which this suit is based is void under the circumstances." In support of this conclusion, the Court of Appeals cited and quoted 2 Page on Contracts, page 1838, section 1040, and 6 Ruling Case Law, page 821, section 216.

Plaintiff Isaacson urges that this holding is in conflict with the following decisions of the Supreme Court: Wood v. K. C Home Telephone Co., 223 Mo. 537, l. c. 564, 123 S.W. 6; Rinehart v. Bills, 82 Mo. 534, l. c. 538, 52 Am. Rep. 385; Stephens v. Spiers, 25 Mo. 386, l. c. 390; Livingstone v. Dugan, 20 Mo. 102; Reilly v. Chouquette, 18 Mo. 220, l. c. 226; ...