Burton v. Auffenberg

• Decision Date: 15 May 1962
• Docket Number: No. 30981,30981
• Citation: 357 S.W.2d 218
• Court: Missouri Court of Appeals
• Parties: Myron O. BURTON, Plaintiff-Respondent, v. Henry R. AUFFENBERG, Francis H. Auffenberg, James A. Auffenberg, Robert J. Auffenberg, and Joseph C. Schultz, d/b/a Nash Missouri, Defendants-Appellants.

Page 218

357 S.W.2d 218

Myron O. BURTON, Plaintiff-Respondent, v. Henry R. AUFFENBERG, Francis H. Auffenberg, James A Auffenberg, Robert J. Auffenberg, and Joseph C Schultz, d/b/a Nash Missouri Defendants-Appellants.

No. 30981.

St. Louis Court of Appeals, Missouri.

May 15, 1962.

Hinkel & Carey, Harold D. Carey, Clifford L. Goetz, St. Louis, for defendants-appellants.

Frank Mashak, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

By this action, growing out of the sale of a new automobile, plaintiff sought to recover actual damages of $1,817.94, together with interest on said sum and punitive damages of $10,000. The verdict and judgment below was for plaintiff for actual damages of $1,200, interest of $360, and punitive damages of $750, or a total of $2,310. Defendant prosecutes this appeal.

Plaintiff's evidence tended to show that in 1955, and for at least part of 1956, the defendants, doing business under the registered fictitious name of Nash Missouri, operated an agency in St. Louis for the sale of Nash and Metropolitan automobiles. In the early part of March 1956, plaintiff inspected a car in defendants' showroom, which the defendants represented to him as being a new 1956 Nash Metropolitan automobile. Plaintiff was not familiar with the year models of that make of car. Relying on the representations of defendants, plaintiff purchased the automobile for the time price of $1,817.94, paying $300 in cash and executing a note and chattel mortgage for the difference. The note and mortgage was shortly thereafter acquired by the Mutual Bank and Trust Company, of St. Louis.

Plaintiff took delivery of the car on March 15, 1956. Five days later he received from defendants, through the mail, an application for a Missouri certificate of title, made out on the form furnished by the State Motor Vehicle Registration Office of the Department of Revenue. The application was accompanied by a letter from defendants telling plaintiff to take '* * * these papers to the License Bureau in order to get title in your name.' In this application, marked plaintiff's Exhibit 10, the automobile was described as a 1956 Nash, Serial No. E9616, Engine No. 1G989466, having four cylinders and 10.63 horsepower. On the reverse side of the application was a form for the dealer or vendor to show the source of ownership, which the defendants completed and acknowledged before a notary public. Plaintiff took this application to the Motor Vehicle Registration Office in St. Louis, but was unable to obtain a certificate of title or license for the car. Defendants' objection as to the reason given plaintiff by the Motor Vehicle Registration Office was sustained.

Whether before or after he received the first application form is not clear from the evidence, but about March 25, 1956, plaintiff received from the Mutual Bank a duplicate original copy of what is titled as a bill of sale for the car, but which in fact is a memorandum of the sale. He noted that in addition to his own signature it bore another purporting to be that of his wife, Ruth Burton, from whom he was separated at the time, and who had not signed the instrument. Plaintiff conferred with Charles Luetkemeyer of the Mutual Bank, and also with John M. Garlich, General Manager of the defendants' business. He told Garlich that he wanted nothing to do with the deal, and Garlich told him he would have to contact the bank, because his note and papers were there. Later plaintiff was given a second bill of sale, dated May 15, 1956, signed by plaintiff and Garlich. Still later, on June 6, 1956, the original note and chattel mortgage was cancelled by the Mutual Bank and returned to plaintiff, and in lieu thereof plaintiff executed a new note and mortgage for the balance then remaining due. When they were returned to him plaintiff found that the original note and chattel mortgage, like the first bill of sale, bore the purported signature of Ruth Burton. Mrs. Burton, who was reunited with plaintiff in 1957, appeared as a witness and testified that she had not signed either the first bill of sale or the first note and chattel mortgage.

Plaintiff testified that between March and August, 1956, he contacted defendants at least once a month regarding his inability to obtain a certificate of title and license for the automobile, and each time was assured that the matter would be straightened out. About August 27, 1956, or a few days later, plaintiff finally received from defendants, through the mail, a second application form, prepared by them, identified as plaintiff's Exhibit 18. In this application the car was described as a 1956 Nash, Serial No. E9616, Engine No. 16989466 having 6 cylinders and 23.44 horsepower. Plaintiff took this application to the Motor Registration Office and was again unable to obtain a certificate of title or a license. An objection to the reason given him was likewise sustained. Again he returned to the defendants, about September 1, informed them he had been unable to obtain a title or license '* * * on account of the application being wrong' as to '* * * the horsepower and the number of the cylinders on the car * * *.' Plaintiff testified that he pointed out to defendants that on the first application the number of cylinders was stated to be 4 and the horsepower 10.63, while on the second application defendants had inserted in the form that the car had 6 cylinders and horsepower of 23.44. Defendants again promised him, plaintiff said, that they would take care of the matter.

Thereafter, around November 1, 1956, plaintiff received from defendants a third completed application, which was marked plaintiff's Exhibit 19. Therein the automobile was described as a '1956 Nash-Metro,' Serial No. E9616, Engine No. 1698466, having 4 cylinders and 13.22 horsepower. Plaintiff presented this application to the Motor Vehicle Registration Office and was again refused a certificate of title and a license. Thereupon he went to the defendants, threw down the keys to the car, offered to return the car, which was outside on the street, and told them that he didn't want anything to do with the deal. Plaintiff testified that defendants threw the keys back and said that plaintiff would have to see the bank, and that plaintiff was responsible on the mortgage. A short period later, plaintiff, having neither a title or license, put the car in storage, where it has remained.

Plaintiff's evidence further tended to show that the automobile which defendants had represented to him as being a 1956 Nash Metropolitan was in fact a 1954 Metropolitan. And Carl Rundquist, Administrative Assistant to the Director of the Motor Vehicle Office in St. Louis, and Anita M. Garson, in charge of the trouble file desk in that office, who handled problems arising from applications for titles, testified that if the applications and bill of sale had been presented to them to obtain a certificate of title and license for plaintiff's automobile they would not have accepted them because of the erroneous descriptions of the car as set forth in the applications.

Defendants' own evidence tended to show that the make of automobile known as the Metropolitan was a different car than that named the Nash, and that the former was manufactured, or at least assembled, in England, while the latter was built in this country. Defendants' evidence further was to the effect that the distributor for the Metropolitan in St. Louis zone was American Motor Sales Corporation; that acting on orders from its home office in Detroit, on December 8, 1955, the St. Louis Office of American Motors notified all of its dealers, including defendants, that on and after December 15, 1955, all Metropolitans sold should be registered with the State License Bureaus as 1956 models; and that the automobile which defendants sold to plaintiff was bought by defendants from American Motors on February 24, 1956. Defendants offered no evidence to explain the variations in the make, number of cylinders, and the horsepower, which appeared on the three applications they prepared for and furnished to plaintiff; nor did they offer any evidence to contradict the testimony of Mrs. Burton as to the falsity of the signature purporting to be hers which appears on the original bill of sale and on the first note and chattel mortgage.

A difference of opinion appears to exist as to the nature of plaintiff's cause of action. Defendants regard it as one by a defrauded purchaser, who, upon discovering the falsity of the representation, attempts to repudiate the sale, tenders the return of the property, and sues to recover the purchase price paid, as in Schroeder v. Zykan, Mo.App., 255 S.W.2d 105. Plaintiff describes his action as one for fraud and deceit, but as we understand his brief, his claim is that the alleged fraud perpetrated by defendants...