C. I. T. Corporation v. Byrnes

• Decision Date: 06 April 1931
• Docket Number: No. 17185.,17185.
• Citation: 38 S.W.2d 750
• Parties: C. I. T. CORPORATION v. BYRNES.
• Court: Missouri Court of Appeals

38 S.W.2d 750

C. I. T. CORPORATION v. BYRNES.

No. 17185.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

Rehearing Denied May 4, 1931.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

"Not to be officially published."

Action by the C. I. T. Corporation against C. F. Byrnes. From the judgment, plaintiff appeals.

Reversed and remanded, with directions.

Hallett & Hallett, of Nevada, Mo., for appellant.

R. K. Phelps, of Nevada, Mo., for respondent.

BLAND, J.

This is a suit to replevin an automobile. The jury returned a verdict in favor of the defendant, assessing his interest in the automobile at the sum of $392.20, and his damages for its taking in the sum of $50.00. On this verdict judgment was duly entered. Plaintiff has appealed.

The cause of action arose in the Justice Court. Possession of the automobile was taken by the constable from the defendant and delivered to plaintiff. Plaintiff's claim to the right of possession of the car, as disclosed by its statement filed in the Justice Court, is based on a chattel mortgage executed by the defendant to one R. O. Janes, doing business as the Nevada Garage. Said chattel mortgage was executed by defendant for the purpose of securing his note in the sum of $313.20, the payments on the latter being in default at the time the suit was filed. The note, before its maturity and for a valuable consideration, had been assigned to plaintiff.

Defendant filed an answer in the Justice Court alleging that he purchased the automobile from Janes, who was acting in the matter as agent for the plaintiff; that the price of the automobile was $600.00; that defendant was given credit for $340.00, which represented the agreed value of an automobile owned by defendant and taken, in the transaction, by Janes in trade; that this left a balance due of $260.00 but Janes added to the note the sum of $53.20; that all of this latter sum, save $10.00, was interest on the note which ran for a period of one year; that said sum so added was no part of the purchase price of the car but was usury; that defendant's note and chattel mortgage was therefore void; that at the time of the purchase of the automobile no certificate of title to it passed and for this reason the sale was fraudulent and void and plaintiff had no right under it to the possession of the car; that although the sale was fraudulent and void, it remained executory and defendant had the right to rescind the sale; that he had on three different occasions offered the car back to plaintiff if plaintiff would return to him the sum of $392.20 which defendant had paid on the car. The answer then prayed judgment in the sum of $392.20 and $100.00 damages for the wrongful taking of the automobile.

The facts show that plaintiff purchased the car in Nevada from Janes, an automobile dealer of that city, on May 18th, 1929; that the cash selling price of the car was $600.00, and the installment payment price, $653.20, the $53.20 being to cover insurance, interest and handling charges; that defendant's used car was taken by Janes who made an allowance for it, in the exchange, of $340.00 on the purchase price of the new car; that defendant executed a note in favor of Janes in the sum of $313.20, representing the balance of the purchase price and payable in twelve equal monthly payments of $26.10; that, to secure the payment of the note, defendant executed a chattel mortgage upon the car he purchased from said Janes; that the payments upon the note were in default at the time the suit was filed; that no certificate of title passed at the time of the sale or thereafter, Janes telling defendant, when the latter purchased the car, that he would furnish him a certificate within a week.

The facts surrounding the relationship between Janes and plaintiff show that he was in the habit of selling his automobile paper to it but did not consult plaintiff before making a sale of a car; that Janes did not sell all of his automobile paper to plaintiff, but would offer plaintiff such paper as he saw fit, the arrangement between them being that he was privileged to offer it the paper subject to its approval and if it did not care to buy the paper it would not take it; that if it purchased the paper offered it would pay him cash for it. The facts further show that plaintiff permitted persons purchasing automobiles from Janes to make payments to him at Nevada upon notes Janes had sold to it; that Janes would remit, or was under obligation to remit, these payments to plaintiff in Kansas City; that at times Janes' purchasers would pay him and at other times they would make their payments direct to plaintiff.

The evidence shows that plaintiff purchased the note in controversy from Janes before maturity and for a valuable consideration. There is no evidence tending to show that plaintiff, when it purchased the note, had any knowledge or notice that the certificate of title to the automobile in question had not been transferred.

The...