Boyer v. Garner
| Citation | 15 S.W.2d 893 |
| Decision Date | 30 March 1929 |
| Docket Number | No. 4565.,4565. |
| Parties | BOYER v. GARNER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.
Action by E. W. Boyer against Homer L. Garner. Judgment for plaintiff, and defendant appeals. Affirmed.
Cope & Tedrick, of Poplar Bluff, for appellant.
Francis M. Kinder, of Poplar Bluff, for respondent.
This action was commenced in justice court to recover the sum of $100 paid by plaintiff on the purchase price of an automobile. The petition filed in that court bottoms plaintiff's right to recover on the allegation that defendant wholly failed and refused to deliver to plaintiff title to said automobile. The case went to the circuit court on an appeal from the justice, and, on a trial de novo before a jury, resulted in a verdict and judgment for plaintiff. Defendant appeals.
Error is assigned in the overruling of defendant's demurrer to plaintiff's petition. It is asserted that the petition wholly fails to state a cause of action, because it shows on its face that it was founded on an unlawful contract. We are referred to section 18, pp. 311-313, Laws of Mo. 1927, by which it is declared to be unlawful for any person to buy or sell any motor vehicle in this state unless, "at the time of the delivery thereof," there shall pass between the parties a certificate of ownership, and "the sale of any motor vehicle or trailer registered under the laws of this State, without the assignment of such certificate of ownership, shall be fraudulent and void." This statute has been held to be mandatory. State ex rel. Ins. Co. v. Cox, 306 Mo. 537, 268 S. W. 87, 37 A. L. R. 1456.
A purchaser of an automobile, to whom a certificate of title thereto is not assigned and delivered at the time of purchase, acquires no title. Mathes v. Westchester Fire Ins. Co. (Mo. App.) 6 S.W.(2d) 66; Weaver v. Lake (Mo. App.) 4 S.W.(2d) 834.
Plaintiff and defendant agree that the foregoing statement of the law is correct. Defendant, however, makes the further point that a person who is a party to an illegal contract is under a disability which prevents him from recovering money paid under such unlawful undertaking. That principle is so well established that it has become almost hornbook law. 13 C. J. 493; 6 R. C. L. 816; Sedalia Board of Trade v. Brady, 78 Mo. App. 585; Bick v. Seal, 45 Mo. App. 475; Ullman v. St. Louis Fair Ass'n, 167 Mo. 273, 66 S. W. 949, 56 L. R. A. 606.
This latter case recognizes an exception to the general principle of law, above stated, to the effect that, so long as a contract is executory only, an action for money had and received to recover back whatever had been paid thereon may be maintained. At page 287 of 167 Mo. (66 S. W. 952) of the Ullman Case, supra, it is said that: "It is only where the contract remains wholly unexecuted on one side and where by its abandonment the act which the law forbids will be averted that the Courts will lend a willing ear to the repentant party, and if he has paid money in advance will permit its recovery," etc. In the early case of Skinner v. Henderson, 10 Mo. 205, it is held that an action will lie to recover money paid on an illegal contract "while the contract remains executory." The law allows a party to avail himself of the locus pœnitentiæ and recover back money paid on an illegal or immoral contract, provided he repents while the contract is executory. Adams Express Co. v. Reno, 48 Mo. 264; Burgess v. Manchester Investment Co. (Mo. App.) 186 S. W. 1144; 13 C. J. 501. Without further elaborating on the foregoing exception to the general rule, we consider the exception applicable here to the extent, at least, of upholding the petition filed in justice court.
The defendant further assigns error in the failure of the trial court to sustain defendant's demurrer to the evidence. Plaintiff offered evidence tending to prove an agreement, by the terms of which he agreed to pay defendant $150 for...
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