Beckley v. Hickerson

• Decision Date: 30 July 1926
• Docket Number: 25577
• Citation: 286 S.W. 74,315 Mo. 400
• Parties: S. D. Beckley v. T. A. Hickerson, Appellant
• Court: Missouri Supreme Court

286 S.W. 74

315 Mo. 400

S. D. Beckley v. T. A. Hickerson, Appellant

No. 25577

Supreme Court of Missouri

July 30, 1926

Transferred from Kansas City Court of Appeals.

Affirmed.

Jas T. Montgomery for appellant.

(1) In an action for money judgment the interest to be awarded is for the jury. Sec. 1423, R. S. 1919; Bradley-Metcalf Co v. Tootle-Campbell D. G. Co., 180 S.W. 339. (2) In a suit for the recovery of money, the jury should assess the amount found to be due. This cannot be done by the court. Burghart v. Brown, 60 Mo. 24; Kates v. Nichols, 42 Mo. 169; Lederer v. Morrow, 132 Mo.App. 438. (3) The jury and not the court must fix the amount to be recovered. Poulson v. Collier, 18 Mo.App. 583; Kroge v. Brotherhood, 126 Mo.App. 693; St. Paul Machinery Mfg. Co. v. Henry Gaus & Sons Mfg. Co., 200 S.W. 89; Milan State Bank v. McCallister, 246 S.W. 609.

W. W. Blain for respondent.

(1) There is no dispute as to the amount of the purchase price paid, viz., $ 287.35, which is also shown by documentary evidence, and as there is no damage pleaded or proven and no set-offs claimed, it does not conflict with Sec. 1423, R. S. 1919, to instruct the jury that if they find the issues for the plaintiff, they must find for plaintiff in the designated sum of $ 250, which is the amount sued for. Especially is this a correct instruction in view of the fact that plaintiff voluntarily reduced the amount of his recovery to $ 250, in order to sue in the justice court, where the suit originated. Farmers Bank v. Stamper, 250 S.W. 961; Elliott v. Ins. Co., 163 Mo. 145; Forge Co. v. Engine Co., 135 Mo.App. 88; Carroll v. Mo. Pac. Ry. Co., 88 Mo. 243; Real Estate Co. v. Inv. Co., 150 Mo.App. 626; Cole v. Armour, 154 Mo. 353; 13 C. J. 796; Budd v. Hoffheimer, 52 Mo. 304. (2) The contract for the sale of the automobile was fraudulent and void under the laws of Missouri. Laws 1921, Ex. Sess. p. 90.

Ragland, P. J. All concur, except Graves, J., absent.

OPINION

RAGLAND

This action was commenced before a justice of the peace. The statement filed in the justice court, with reference to the issues which were submitted to the jury on a trial de novo in the circuit court, was as follows:

"Plaintiff states that on the 19th day of June 1922, he purchased from defendant one Dodge touring car, which defendant represented to belong to him and to which he claimed title and defendant promised to convey good title to plaintiff; that plaintiff paid defendant the sum of $ 268.25, and put repairs on said car that cost plaintiff $ 19.50, making a total cost to plaintiff of $ 287.85; that defendant failed and refused to furnish plaintiff with a title to said car, although often requested by plaintiff to furnish same; that plaintiff retained and kept said car up to the 13th day of September, 1922, waiting on defendant to furnish title so plaintiff might obtain license to run and operate same; that said car would have been utterly worthless to plaintiff without title; that it was only by reason of defendant furnishing to plaintiff a demonstrator's license that he was able to use the said car at all and that plaintiff was afraid to use said car on many occasions when he would have used same if he had had title to same; . . . that plaintiff has been damaged by reason of said sale in the sum of $ 287.85. Plaintiff enters a voluntary credit on said claim of $ 37.85.

"Wherefore, plaintiff prays judgment against defendant in the sum of $ 250, and for the costs of this suit."

No pleading of any kind was filed on the part of defendant.

The evidence on the part of both plaintiff and defendant disclosed that on or about the 19th day of June, 1922, the defendant sold to plaintiff a used automobile at the agreed price of $ 625; and that at the time of the delivery of the vehicle plaintiff paid defendant $ 200 in cash on account of the purchase price, and executed two notes for the remainder: one for $ 27.06, due June 28, 1922; and one for $ 454.19, payable in eleven monthly installments of $ 41.29 each.

Plaintiff testified that he paid the $ 27.06 note and the first installment on the larger note, which fell due July 20, 1922, but that he refused to make any further payments. He further testified:

"The car was delivered to me in a short time after I purchased it. I left the money with Mr. Hickerson to purchase me a state license, and he suggested that I not purchase it until the first of August, as it would save me money. I left the amount with him to purchase the license.

"The first installment of forty-one dollars and twenty-nine cents on the note came due on the 20th day of July, and I paid it . . .

"I called on Mr. Hickerson twelve or fifteen times for the license after the first of August, but never could get it. The first time I called for the license was the 30th of July. I was using a dealer's license on my car at the suggestion of Mr. Hickerson. Mr. Hickerson told me that he bought the car from a Mr. Johnson. He told me 'To leave the license money there, and he would send the title he got from Mr. Johnson to Jefferson City, and have it transferred to me, and get the license.' I did not see the title he got from Mr. Johnson. Every time I would go back Mr. Hickerson would say, 'The license ought to be here in a couple of days. I have the title around here, but it is misplaced.' And he still insisted on my using the demonstrator's license, and I drove the car under the demonstrator's license.

"I did not pay the August installment on the note secured by the chattel mortgage. . . . I took the car back to Mr. Hickerson's garage (sometime in September) and left it in the back part of the garage. I went up the alley, and I asked them to give me twenty-five dollars back out of the money I had paid on the car, and he said, 'He wouldn't do it.'"

Plaintiff then brought this suit.

The defendant testified:

"The car I sold to Mr. Beckley, I bought from Mr. Johnson, of Lincoln, Benton County, Missouri. At the time I bought it, I got a certificate of title from Mr. Johnson. . . .

"I showed the title to Mr. Beckley at the time I sold him the car, and told him from whom I bought it. Mr. Beckley came in and left $ 6.50 with Mr. Gold, one of my men, to pay for the license. I had suggested to Beckley not to buy license until about the first of August, as it would save him some money; to take the car and drive it on my dealer's license, which he had a right to do.

"Along about the 4th or 5th of August, I discovered I had lost or misplaced the title to the car, that I had gotten from Mr. Johnson. I hoped it would turn up, for about ten days. I tried to locate Mr. Johnson. Before I could get him located and a duplicate title, I was sued by Mr. Beckley. . . .

"I still have the car, and have the title to the car, and if Mr. Beckley will pay his notes, I will gladly turn him over the car withgood title, and not charge him anything for storage and repairs that I have had to put on it. He can have the car at any time he wants to pay for it.

"I got the title to the car in November, just as soon as I could get hold of Mr. Johnson. This certificate of title is a duplicate of the one I got from Mr. Johnson at the time I purchased the car from him. I misplaced that one, and had to get a duplicate from Mr. Johnson. . . .

"The only amount of money that...