Beckley v. Hickerson

• Decision Date: 31 December 1923
• Docket Number: No. 14893.,14893.
• Citation: 257 S.W. 822
• Parties: BECKLEY v. HICKERSON.
• Court: Missouri Court of Appeals

257 S.W. 822

BECKLEY v. HICKERSON.

No. 14893.

Kansas City Court of Appeals. Missouri.

December 31, 1923.

Rehearing Denied January 21, 1924.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially reported."

Action by S. D. Beckley against T. A. Hickerson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James T. Montgomery, of Sedalia, for appellant.

W. W. Blain, of Sedalia, for respondent.

BLAND, J.

This is an action brought in a justice court to recover in the way of damages the amount of money paid by plaintiff to defendant on an automobile, plaintiff alleging that there was a misrepresentation as to the model of the car, and that defendant failed to have the title to the car transferred to him according to law. There was a verdict and judgment in favor of plaintiff in the sum of $250, and defendant has appealed.

The evidence shows that plaintiff purchased of defendant on the 9th day of June, 1922, an automobile at the price of $625. Plaintiff paid to defendant $200 in cash, the balance of the purchase price being paid by plaintiff's giving his personal note in the sum of $27.06, which was paid on June 28, 1922, and his note payable in 11 monthly installments of $41.29 each. This latter note was secured by a chattel mortgage on the car executed by plaintiff and his brother. The first installment on that note was paid by plaintiff, but the second, due August 20, 1922, he failed to pay, and did not pay any other installment, but returned the car to defendant's garage, and left it there for defendant.

There was evidence that the car was represented to be a 1920 model, when in fact it was a 1918 model, and that the car was returned for the further reason that defendant had not furnished the certificate of title provided by law. Laws Extra Session 1921, p. 90. Defendant's evidence tended to show that the automobile was returned, not for the reasons testified to by plaintiff, but that plaintiff said that he was financially unable to complete the purchase; that defendant had lost the certificate of title that was given to him by the man from whom he purchased the car, but defendant told plaintiff that he would secure another certificate for him. Defendant's evidence shows that he secured a transfer of the title to himself on the 4th day of November, 1922, by the former owner of the car.

The issues between the parties were submitted to the jury upon instructions that are not complained of except plaintiff's instruction No. 2, which reads as follows:

"The court instructs the jury that if you find for plaintiff your verdict must be in the sum of $250."

Defendant complains that this was error in view of section 1423, R. S. 1919, which reads as follows:

"When a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall also assess the amount of the recovery; so, also, if they find for the defendant in case of offsets or other demand for money."

We think this contention is well taken. Plaintiff claims that this statute has to do with the calculation only of interest by the jury, but clearly there is no logical ground to so restrict it as its wording is general. In Ward v. Bowman (Mo. App.) 228 S. W. 833, 834, it is said:

"* * * The court had no more right to determine the amount of the principal of the note, and tell the jury to bring in a verdict for that amount, than he had to calculate the interest."

See, also, Corbitt v. Mooney, 84 Mo. App. 645; Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Kroge v. Modern Brotherhood of America, 126 Mo. App. 693, 105 S. W. 685; Lederer v. Morrow, 132 Mo. App. 438, 111 S. W. 902; Good v. Kenney (Mo. App.) 226 S. W. 596; Johnson v. Grayson, 230 Mo. 380, 407, 130 S. W. 673; Boutross v. Miller (Mo. Sup.) 223 S. W. 889. Prior to the decision in the, case last cited, the Supreme Court and the Courts of Appeals had been deciding both ways upon the proposition as to whether the court could instruct the jury as to the amount of the recovery. In the opinions in which it was decided that the court could so instruct the jury, the statute seems to have been lost sight of as it is not cited or commented upon. See Lumber Co. v. Harvester Co., 215 Mo. 221, 251, 114 S. W. 1087; Wright Investment Co. v. Realty Co., 178 Mo. 72, 77, 77 S. W. 296; Bank of Slater v. Union Station Bank Co., 283 Mo. 308, 222 S. W. 993. In the last case cited the opinion was written by the judge who dissented in the case of Boutross v. Miller, and the case was decided prior to the Boutross-Miller Case. The only question remaining, then, is as to whether this suit is for the recovery of money. The case of Lederer v. Morrow, supra, was one to recover back, on the ground of fraud, an amount of money paid for stock in a corporation. The court held that the statute applied, and that case is authority that the case at bar is also a suit to recover money.

However, it is stated by the defendant that the amount of recovery that plaintiff is entitled to is not in...