Bordman Inv. Co. v. Peoples Bank of Kansas City
| Decision Date | 01 December 1958 |
| Docket Number | No. 22747,22747 |
| Parties | BORDMAN INVESTMENT COMPANY, Plaintiff-Respondent, v. PEOPLES BANK OF KANSAS CITY and Robert Clauson, Defendant-Appellants, and James Watts, John Doe and Mary Roe, Defendants. |
| Court | Missouri Court of Appeals |
Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, for appellant Peoples Bank of Kansas City.
Michael J. Drape, Kansas City, for appellant Robert Clauson.
Louis A. Reale, Geo. V. Alyward, Kansas City, David R. Clevenger, Platte City, for respondent.
This is an action by plaintiff-respondent, Bordman Investment Company, to replevin a 1955 Chevrolet automobile worth $2,102.50. Defendant-appellant, Peoples Bank of Kansas City, filed its answer and counter-claim seeking recovery from plaintiff of the value of the automobile. Defendant-appellant, Robert Clauson, filed his answer and a counter-claim against plaintiff for $3,000 for wrongful taking of the automobile and for its return. The trial court, hearing it as a jury waived case, found the issues generally in favor of plaintiff and against defendants on all issues including the counter-claims and awarded possession of the automobile to plaintiff.
The Bank and Clauson perfected separate appeals, which, in accordance with their stipulation, have been consolidated. This opinion will dispose of both appeals. Previously, we heard these consolidated appeals, rendered an opinion affirming the judgment of the trial court, and upon appellants' motion granted a rehearing.
According to the evidence, James Watts had been employed in the sale of automobiles in Kansas City for many years. His car sales lot, upon which he kept automobiles for sale, was located across an alley from plaintiff's place of business. Plaintiff was in the business of financing automobile purchases, and it and the earlier entities which about December 1955 'merged' and became plaintiff corporation had loaned Watts money, secured by chattel mortgage on the particular vehicle or vehicles acquired by Watts for resale. Defendant bank under a floor planning arrangement through the years also had loaned money to Watts. Both Bordman and defendant bank knew of the other's financial dealings with Watts.
On August 4, 1955, I. Bordman entered into his arrangement with Watts concerning the 1955 Chevrolet sports coupe in issue here. Watts wished to purchase that car along with some others through the Kansas City Auction Company. Bordman issued a check payable to the Kansas City Auction Company in payment of the car, with the notification that the title to the car must be attached to the check upon presentation of the check for payment. The title, so attached, was received by Bordman, and was retained and held by Bordman. On that date Watts executed a promissory note for $2,102.50 and executed a chattel mortgage covering the car and seven others purchased at the same time in favor of I. Bordman d/b/a the Bordman Investment Company. The chattel mortgage was duly filed in the office of the Recorder of Deeds of Jackson County on August 8, 1955, and remained on file there.
This automobile previously had been titled by the State of Kansas in the name of Irene and/or Benjamin J. Bartholomew, of Topeka, Kansas. That certificate, after the mentioned auction sale to Watts, was assigned to Watts and, as stated, was delivered to and held by Bordman.
On August 22, 1955, Clauson went to Watts' car lot where he undertook to purchase the car. In accordance with the sale terms agreed upon, he traded in his old car plus $255 cash and agreed to pay the purchase price balance of $2,350. Clauson signed a blank note and chattel mortgage later filled in for the agreed total amount of $3,366 including the principal of $2,350; 3 years' insurance, $270; 3 years' life insurance $102; reserve $206; and $438 interest; payable at the rate of $93.50 per month for 36 months. Watts sold this note and securing chattel mortgage to defendant bank.
Clauson was told by Watts that the title certificate to the car was not immediately available and that Watts would give it to him soon. He asked Watts for it on numerous later occasions and each time he was again promised it but never given it. He made four payments, and the car was taken from him by plaintiff on February 6, 1956.
It is the accepted rule, as defendants contend, that plaintiff must stand on the strength of its own title in this replevin action and cannot recover on the weakness of defendants' title. Foulke v. McIntosh, Mo.App., 214 S.W.2d 735, Universal C. I. T. Credit Corp. v. Griffith Motor Co., Mo.App., 243 S.W.2d 814. Defendants claim there is no satisfactory showing that plaintiff corporation was the owner of the note and chattel mortgage, and thus plaintiff lacks sufficient title and interest in the automobile to succeed herein. The note and mortgage in question were made to I. Bordman d/b/a Bordman Investment Company, whereas this suit was brought by Bordman Investment Company, a corporation. This corporation did not come into existence until after the note and chattel mortgage were executed. Hence, defendants' contention that it is not shown that plaintiff corporation owned the note and mortgage.
There was evidence that Bordman Investment Company 'merged' with Bordman Investment Company, a corporation. The note in question was in evidence with its endorsements including that of Bordman Investment Company. The note and chattel mortgage were in the possession of plaintiff at the trial. See, Section 401.030 RSMo 1949, V.A.M.S.; C. I. T. Corp. v. Straub, Mo.App., 11 S.W.2d 759; Butler v. Kopplin, Mo.App., 253 S.W.2d 514. It is conceded that the chattel mortgage offered in evidence was given to cover the Chevrolet automobile involved in this replevin action. It is also undisputed that Watts was the owner of the car when he executed the note and chattel mortgage. The judgment of the trial court impliedly found that plaintiff was the owner of the note and mortgage at the time this suit was filed. We agree that there is ample evidence to that effect, and our finding is in accordance with that evidence.
The principal fact dispute at the trial was whether Bordman had authorized Watts to actually sell the car and then bring the purchase money to Bordman who then would have the title assigned to the purchaser, or whether Watts was authorized by Bordman only at most to find a prospective purchaser for the car, pay off the note on that car, receive the title certificate, and thereafter complete the sale.
The only witness on this issue on behalf of plaintiff was its general manager, Mr. Goldberg. Defendants assert his testimony shows Bordman did authorize Watts to sell the car, then bring the purchase money to it, and obtain the title certificate. We have carefully reviewed all of Goldberg's testimony which is lengthy. A few of his statements on the subject possibly appear to favor defendants' view. Yet a fair reading of all his testimony clearly indicates it is his statement that although Bordman knew the particular car was on Watts' lot fot the purpose of eventually selling it, Bordman was not 'floor planning' Watts. Rather, when Watts brought Bordman the money owed Bordman for a particular car's purchase, Bordman would then make the title certificate available for assignment to the prospective purchaser. Bordman did not authorize Watts to actually sell the car prior to payment of the particular note and the obtaining of the title document from Bordman. Goldberg knew of no instance in which Watts had sold a car before paying off the applicable note and obtaining the title certificate.
To support their view of the controversy, defendants offered in evidence, over objection, a deposition of Watts taken in another lawsuit in which Bordman and Watts were parties involving other transactions and other automobiles. In that deposition Watts stated that he had been authorized by Bordman to first sell a car and then bring the purchase money to Bordman and obtain from Bordman the title paper and note. The trial judge overruled the objections to the admission of the deposition and received it in evidence subject to any objection made as to any particular question and answer contained in it. Upon objection being made to Watts' statements that he was authorized to first sell a car then bring the purchase money to Bordman and obtain the title paper and note the trial judge sustained the objection and did not admit those answers in evidence.
We find it unnecessary to determine the correctness of the trial judge's rulings on this subject. The trial judge found generally for plaintiff which includes his finding favorably to plaintiff on all factual issues necessary to his judgment for plaintiff. Further, when we consider anew all of the evidence, as is our duty on this appeal, and reflect on the fact that Goldberg took the stand in this case and withstood vigorous cross-examination, while Watts refrained from testifying in this case because 'it might incriminate him' and in lieu of such testimony defendants rely on a deposition taken in another case, not involving this particular transaction, we resolve the conflict of testimony and credibility question by accepting plaintiff's version of it as stated by Goldberg. Thus, having assumed, but not having decided, that the Watts' deposition and mentioned answers contained therein, are admissible, plaintiff prevails in its contention that Watts was not authorized by Bordman to sell the automobile and receive the purchase money before paying off the note to Bordman and obtaining the title paper from Bordman. This finding is in general accordance with the provision in the chattel mortgage given Bordman by Watts that 'said mortgagor * * * will not attempt to sell (the car) * * * without the written consent of the mortgagee * * *.'
The note and mortgage were valid and binding as between Bordman and Watts, the consideration...
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