Citizens Discount & Inv. Corp. v. Wood
| Decision Date | 17 December 1968 |
| Docket Number | No. 33131,33131 |
| Citation | 435 S.W.2d 717 |
| Parties | CITIZENS DISCOUNT AND INVESTMENT CORPORATION, a Corporation, Plaintiff-Appellant, v. George WOOD, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Carstarphen, Harvey & Wasinger, Hannibal, for plaintiff-appellant.
Fred Wilkins, Edward A. Glenn, Louisianna, for defendant-respondent.
DOERNER, Commissioner.
In this court-tried action for the replevin of an automobile the court sustained defendant's oral motion for judgment at the close of plaintiff's evidence and after an unavailing motion for a new trial plaintiff brought this appeal.
The car involved, a 1965 Chevrolet four door sedan, was titled by the State of Nebraska by the issuance of a certificate of title to John Wilkinson Auto Sales, of Lincoln, Nebraska, on January 12, 1966. Wilkinson assigned the certificate to Pillon Auto Sales, Inc., of Lincoln, on April 14, 1966, by executing the assignment form on the back of the certificate. On the same day, by completing and executing an additional form on the Nebraska certificate, Pillon re-assigned it to Ellis Auto and Metal Works, the name under which one Ellis Feith, an automobile dealer, engaged in business at Bowling Green, Missouri. Plaintiff, a finance company, made a series of loans to Ellis to finance Ellis' inventory of automobiles offered for sale to the public. To protect its interests plaintiff had required Ellis to execute a financing statement on such automobiles, pursuant to § 400.9--302, Laws 1963, p. 622, V.A.M.S., and had filed copies thereof with the Secretary of State and the Recorder of Deeds of Pike County on January 23, 1966. And as security for the loan on the automobile here involved Ellis executed a promissory note payable to plaintiff in the amount of $1750, dated May 25, 1966, due August 25, 1966, with interest from date at 7%, and an instrument titled 'chattel mortgage,' which was not filed for record.
Plaintiff has devoted a considerable portion of its brief in support of the proposition that it complied with all pertinent statutory requirements necessary to establish the validity of its lien on the automobile in question. In a commendable effort to narrow the controverted issues defendant states in its brief: With that concession in mind we turn to a review of the pertinent evidence.
As its first witness plaintiff called the defendant to the stand. Defendant identified his signatures on plaintiff's exhibits (P--1(B) and P--1(C), and upon request produced and identified his certificate of title to the car involved, (marked plaintiff's exhibit 2) to all of which exhibits we will presently refer. Counsel for plaintiff propounded the question, and received defendant's answer, as follows:
Plaintiff also introduced in evidence the following exhibits, which in their chronological order are as follows:
(1) Exhibit P--6 The chattel mortgage on the car, executed on May 25, 1966, by Ellis E. Feith, doing business as Ellis Auto and Metal Works. The following provisions in what is obviously plaintiff's printed form are particularly pertinent:
'Mortgagor agrees to keep said chattels in his sales room at _ _ Street, Bowling Green, Missouri, and shall be entitled to exhibit the same for sale and to sell each of them in the regular course of trade for the account of Mortgagee for cash for not less than the pro-rated portion of the note with respect to such chattel and accrued interest thereon, and shall hold the proceeds of any sale as Trustee for Mortgagee separate and apart from his own funds and shall account to the Mortgagee for the same and make immediate remittance to Mortgagee. * * *
On the reverse side of the chattel mortgage there is printed a form titled 'Wholesale Discount & Payment Record.' This record indicates that no payments were made on the loan and that the full amount of $1750, together with interest thereon, remained due and payable until February 18, 1967, when a charge back credit of $40.50 was entered on the record. (2) Exhibit P--7(C) Application of Ellis Auto and Metal Works for a Missouri certificate of title, on the official form, dated June 14, 1966, in which the motor vehicle is misdescribed as a 1966 Chevrolet. No lien is shown in the box for that purpose on the form.
(3) Exhibit P--7(D) Application of Ellis Auto and Metal Works for a Missouri certificate of title, on the official form, dated November 3, 1966, in which the subject car is described as a 1965 Chevrolet. In the appropriate box bearing the printed words 'First Lien' there is hand printed the name 'George Wood.' The form is stamped with the word 'Corrected.'
(4) Exhibit P--1(B) Missouri certificate of title on the automobile involved issued to Ellis Auto and Metal Works, dated November 9, 1966. The certificate, in part, obviously incorporates by photostat plaintiff's exhibit P--7(D), the application of November 3, 1966, and thus includes the references to the first lien and the word 'Corrected.' On the face of the certificate there is printed 'The undersigned, holder of the lien described on the certificate of title hereby releases said lien' followed by the signature and date: 'George Wood 11--19--66.' On the back of the exhibit the assignment of title form is completed, and acknowledged by Ellis Feith before a notary, whereby Ellis Auto and Metal Works assigned the certificate of title to George Wood on November 19, 1966.
(5) Exhibit P--1(C) Application of George Wood for a Missouri certificate of title for the car, made on the official form, dated December 7, 1966 on which there appears the following:
When defendant identified his signature on this exhibit he stated: 'Yes, sir; that is on my old car that I traded in.'
(6) Exhibit P--2 Missouri certificate of title issued to George Wood on the subject vehicle, dated December 27, 1966. In part, it consists of a photostat of exhibit P--1(C) and thus...
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