C. I. T. Corporation v. Hume

• Decision Date: 11 January 1932
• Docket Number: No. 17338.,17338.
• Parties: C. I. T. CORPORATION v. HUME.
• Court: Missouri Court of Appeals

48 S.W.2d 154

C. I. T. CORPORATION v. HUME.

No. 17338.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Rehearing Denied February 1, 1932.

Appeal from Circuit Court, Vernon County; C. A. Hendricks, Judge.

"Not to be officially published."

Suit by the C. I. T. Corporation against F. G. Hume. From a judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

H. J. Simmons and Hallett & Hallett, all of Nevada, Mo., for appellant.

Howell H. Heck, and R. K. Phelps, of Nevada, Mo., for respondent.

TRIMBLE, P. J.

Replevin suit begun September 27, 1930, to recover possession of an Essex automobile. Under the writ the sheriff took the automobile and delivered it to plaintiff, at the same time summoning defendant to appear. Defendant executed a redelivery bond, and reobtained possession of the automobile.

Plaintiff's claim of right to possession is based on a chattel mortgage executed by the original purchaser of the car, J. L. Bunker, to secure a note for $410, dated April 6, 1929, payable to R. O. Janes, doing business as the "Nevada Garage," and given for the unpaid portion of the purchase price of said automobile. Said note was payable in ten equal monthly installments, the last of which became due February 6, 1930, and, with others, remained due and unpaid.

The note was mailed to plaintiff at Chicago on the day of its execution, and the latter, upon investigation, issued its check in payment of the draft attached to the note, and thereby became the purchaser of the note and chattel mortgage. The latter was recorded in the proper recorder's office on the 15th day of April, 1929, and on the day of trial said note had not been paid to plaintiff, nor had said mortgage been released.

After the sale of the note and mortgage to the plaintiff, Bunker, on August 3, 1929, traded the car in controversy back to Janes for another car; the assignment from Bunker to Janes reciting that the motor vehicle "is subject to the following liens and incumbrances and none other." No liens or incumbrances were stated, however. But Janes orally agreed with Bunker to assume and pay the note secured by the mortgage. On the same day, August 3, 1929, Janes sold the said Essex car to defendant F. G. Hume; the assignment reciting that at the time of delivery the vehicle was subject to no liens. The certificate of title, however, disclosed on its back that there was a lien on the car for $410, and Hume called Janes's attention to it, but the latter said the lien was paid, and thereupon marked the lien off the certificate. Hume, accepting Janes's statement in this regard, paid Janes the full amount of the agreed purchase price of the car. Shortly thereafter Janes disappeared, and has not been heard from since. The indebtedness secured by the chattel mortgage was never fully paid, and defendant when asked to pay same, refused to do so. Plaintiff thereupon as mortgagee instituted this suit. The jury found for defendant, i. e., that he was entitled to the possession of the car, and assessed his damages for the taking thereof at the sum of $150. Judgment was rendered on the verdict, and plaintiff duly appealed.

The defendant's answer denied the facts relied on to give a right of recovery and pleaded the purchase of the car by Bunker from Janes, the giving of the note and chattel mortgage for $410, and that thereafter the plaintiff claimed to be the owner and holder of the note and chattel mortgage. The answer further set up that Janes was plaintiff's agent in receiving payments on notes and in handling collections on notes generally; that Bunker thereafter made a bill of sale and assignment of the certificate of title to Janes, doing business as the "Nevada Garage"; that Janes reassigned the certificate of title to defendant and marked on the face thereof, on July 1, 1929, that the indebtedness or lien thereon had been paid; that defendant purchased said automobile from Janes and paid him the full purchase price therefor and took the reassigned certificate of title; and that thereafter plaintiff obtained a warrant for the arrest of said Janes, charging him with embezzlement as an agent of plaintiff.

The plaintiff filed a reply which was a general denial.

Before taking up plaintiff's (appellant's) complaints of errors committed, it may be well to pass on defendant's (respondent's) strenuously urged contention that plaintiff can in no event prevail in this cause for the reason that it has not shown itself to be the owner of the note and chattel mortgage on which this suit in replevin is based; plaintiff being required to recover, if at all in such case, on the strength of its own title, and not on the weakness of defendant's. The basis of this complaint is twofold: First, that the record shows no evidence of any legal indorsement of the note by the payee to plaintiff; second, that the indorsement shown to have been made is by the "Nevada Garage by Mrs. R. O. Janes," instead of by R. O. Janes himself. Without considering the effect of an indorsement by delivery, which was at least done, the record shows, by the testimony of even defendant's witnesses, that Mrs. Janes worked in the garage, and that R. O. Janes recognized the validity of the assignment of the note and mortgage by making the payment of at least two and perhaps three installments due on the note to the assignee, the plaintiff herein. The contention of defendant is without force or merit.

At the close of all the case plaintiff asked an instruction which directed the jury to find that plaintiff was entitled to the possession of the automobile; that the same was unlawfully detained by the defendant and was at the time of the institution of the suit; that the jury should find the value of the automobile at the time of the trial, and, if they found that the plaintiff had been damaged by the detention of the property, they should assess damages in such sum as they may determine plaintiff has been damaged by detention not to exceed $50.

This instruction was refused. We think it should have been given. No defense to plaintiff's right to the possession of the car was made. As above stated, there was no controversy over plaintiff's ownership of and title to the note and mortgage. The latter was duly recorded in the proper place a few days after its execution, and no contention was made that it was ever fully paid, or was invalid in any way. It is true defendant attempted to show...