Bordman Inv. Co. v. Field

• Decision Date: 25 January 1958
• Docket Number: No. 40752,40752
• Citation: 320 P.2d 862,182 Kan. 344
• Parties: BORDMAN INVESTMENT COMPANY, a Corporation, Appellant, v. Willis D. FIELD and Pauline V. Field, and Commerce Trust Company (Intervener), Appellees.
• Court: Kansas Supreme Court

Page 862

320 P.2d 862

182 Kan. 344

BORDMAN INVESTMENT COMPANY, a Corporation, Appellant, v. Willis D. FIELD and Pauline V. Field, and Commerce Trust Company (Intervener), Appellees.

No. 40752.

Supreme Court of Kansas.

Jan. 25, 1958.

Rehearing Denied March 12, 1958.

Syllabus by the Court.

In a replevin action to recover possession of an automobile, brought by a plaintiff, who claimed to have a lawful claim to that property under and by virtue of the terms of a chattel mortgage, against defendants, who had purchased and received possession of such motor vehicle from a used car dealer in Kansas City, Missouri, without complying with the automobile registration laws of either Kansas or Missouri, the record is examined, and it is held, that under facts, conditions and circumstances set forth at length in the opinion the trial court did not err:

1. In permitting a party who claimed to have an interest in the automobile to be made a party defendant in the action.

2. In overruling plaintiff's demurrer to the second amended answer and cross-petition of the original defendants.

3. In overruling plaintiff's motion for judgment on the pleadings in favor of the plaintiff and against such defendants.

4. In overruling plaintiff's demurrer to the answer of the intervening defendant.

5. In directing that only the portion of the case concerning the plaintiff's right to possession be tried and that all issues respecting such right should be submitted to the jury.

6. In permitting the intervener to participate in the trial of the limited issues involved.

7. In overruling plaintiff's motion for judgment against the original defendants and the intervener on the pleadings and opening statements.

8. In overruling plaintiff's demurrers to the evidence of the original defendants and the intervener.

9. In overruling plaintiff's motion for an instructed verdict.

10. In overruling plaintiff's motion for judgment non obstante veredicto.

11. In overruling plaintiff's objections to evidence.

12. In refusing plaintiff's requested instructions or in giving the instructions submitted.

13. In overruling plaintiff's motion for a new trial.

14. In rendering judgment against the plaintiff.

J. Willard Haynes, Kansas City, W. C. Jones, Oalthe, on the brief, for appellant.

John J. Gardner, Olathe, and James E. Lockwood, Kansas City, Mo., for appellees, Willis D. Field and Pauline V. Field.

PARKER, Chief Justice.

Plaintiff, Bordman Investment Company, a corporation licensed under the laws of the State of Missouri to engage in the automobile finance business, commenced an ordinary replevin action against the defendants, Willis D. Field and Pauline V. Field, residents of Johnson County, Kansas, in the district court of Johnson County on March 13, 1956, by filing a petition wherein it alleged, in substance, that it had a special ownership or interest in and was entitled to the immediate possession of a 1956 Buick automobile (describing it) under and by virtue of a chattel mortgage executed and delivered by James Watts, doing business as Watts Motor Company in Kansas City, Missouri (hereinafter referred to as Watts); that at the time of the execution of such mortgage Watts was the owner of such automobile and that that instrument had been filed of record in the office of the Recorder of Deeds of Jackson County, Missouri, on December 5, 1955, where it had remained of record ever since the filing date, unsatisfied and unreleased of record; that plaintiff was the owner and holder of such mortgage and entitled to all rights thereunder; that the conditions of the mortgage had been broken by Watts who had failed, neglected and refused to pay the amount named in the mortgage, to wit: $2,950 on demand; that there was then due plaintiff from Watts under the terms of such mortgage, and a note evidencing the indebtedness secured thereby, the sum of $3,000; that the automobile described in the mortgage as security for the payment of such debt was then in the possession of defendants who wrongfully detained it and had refused to surrender the same to plaintiff and still refused to do so; and that by reason of the facts stated plaintiff demanded judgment against the defendants for the possession of such automobile and costs of the action.

Defendants' second amended answer and cross-petition, verified by Pauline V. Field, consists of a general denial and additional allegations, designated as a further answer and cross-petition. Since, as will be presently disclosed, the case was submitted solely on plaintiff's right to possession of the automobile no useful purpose would be served by reference to the cross-petition. However, the additional allegations of the answer serve the dual purpose of disclosing defendants' claim with respect to the controversy as well as the trial court's reason for submitting the cause as heretofore indicated and on that account are important. Limited strictly to matters pertaining to possessory rights of the parties such allegations read:

'4. That on December 28, 1955, said defendants negotiated with and purchased from Kansas United Auto Sales, Inc. a certain new automobile described as a 1956 model Buick Hardtop two door Riviera Coupe, Motor No. 14705266, for and in consideration of Three Thousand Ninety-five ($3,095.00) Dollars; that said automobile was delivered to these defendants at the place of James Watts, doing business as Watts Motor Co. in Kansas City, Missouri, Jackson County, so sold and delivered in the usual course of business and a Bill of Sale given to these defendants by Kansas United Auto Sales, Inc. by and through its manager, showing said automobile free from all incumbrances, a true and complete copy of which is hereto attached and marked Exhibit A; that at the time of said sale defendants assigned certificate of title on a 1952 Oldsmobile Motor No. R91630 to Kansas United Auto Sales, Inc. as a trade in on the said Buick automobile and delivered to Kansas United Auto Sales, Inc. a check drawn by Willis D. Field in the amount of Two Thousand Four Hundred Sixty-three ($2,463.00) Dollars, representing Two Thousand Four Hundred Twenty-five ($2,425.00) Dollars on the purchase price of the Buick automobile and Thirty-eight ($38.00) Dollars Kansas Sales Tax, said check being attached hereto and marked Exhibit B. That all negotiations above mentioned were had at the place of business of Watts Motor Co., in Jackson County, Kansas City, Missouri; that the Bill of Sale, Certificate of Title on the said 1952 Oldsmobile and said check in the amount of Two Thousand Four Hundred Sixty-three ($2,463.00) Dollars above mentioned were all delivered at the place of business of Watts Motor Co. in Jackson County, Kansas City, Missouri.

'5. That on March 13, 1956, said automobile was taken from these defendants without notice or demand by Bordman Investment Co. through this replevin action.

'6. That plaintiff at all times herein mentioned knew that James Watts, doing business as Watts Motor Co., and Kansas United Auto Sales, Inc. were engaged in the business of selling new and used automobiles to the general public; that plaintiff financed automobiles distributed and sold to the general public both through Watts Motor Co. and Kansas United Auto Sales, Inc. Plaintiff further knew at all times herein mentioned that automobiles in the possession of James Watts doing business as Watts Motor Co. or Kansas United Auto Sales, Inc., were being sold to the general public as free and clear of all encumbrances. Plaintiff further had full knowledge of the sale of said Buick automobile to these defendants as is set out above.

'7. That plaintiff knowingly and purposely allowed said automobile to be sold to these defendants as a new automobile free of encumbrances and then purposely and wrongfully brought an action in replevin against these defendants to recover the same.

'8. That by reason of the facts alleged above plaintiff does not have such an interest in said automobile which would allow plaintiff to defeat defendant's claim and that plaintiff is estopped to claim any interest in said automobile; that these defendants are, therefore, entitled to recover said automobile * * *'

After the overruling of its demurrer to the foregoing answer plaintiff filed a long and complicated reply. In a general way it may be stated this pleading, assuming at all times that plaintiff was entitled to possession of the automobile in question by reason of its mortgage from Watts, contains recitals to the effect that under the facts and circumstances set forth in their answer, and others detailed at length in the reply, defendants had failed to comply with the laws of either Missouri or Kansas in purchasing the automobile and had acquired no valid title thereto, hence they had no legal defenses whatsoever which could defeat plaintiff's recovery in the replevin action.

Following the filing of its reply plaintiff's motion for judgment on the pleadings was overruled on the ground such pleadings disclosed issues of fact that must be determined from evidence.

Thereafter, either by permission or order of the court, the Commerce Trust Company, a corporation, intervened in the action and filed an answer to the petition. Nothing would be gained by detailing this pleading. For purposes pertinent to the appellate issues involved it suffices to say such answer contains a general denial of the allegations of plaintiff's petition; asserts that the Fields purchased and obtained possession of the automobile in the manner set forth in their answer; alleges that the Trust Company furnished such defendants the money with which to pay Watts the difference between the trade in value of the old automobile and the new automobile purchased from Watts; discloses that to secure payment of the money so advanced such defendants gave the Commerce Trust Company a chattel mortgage on the new automobile; and prays for judgment confirming title to the new automobile to...