Craig v. Rueseler Motor Co.

Citation159 S.W.2d 374
Decision Date03 March 1942
Docket NumberNo. 25860.,25860.
PartiesCRAIG v. RUESELER MOTOR CO., Inc.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Cape Girardeau County; J. C. McDowell, Judge.

"Not to be reported in State Reports."

Action by H. R. Craig against the Rueseler Motor Company, Inc., to recover damages for breach of contract relating to the sale of an automobile truck. Judgment for plaintiff and defendant appeals. Reversed.

J. Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for appellant.

R. P. Smith, of Cape Girardeau, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for the breach of a contract.

The petition alleges that on or about April 1, 1940, plaintiff and defendant entered into a contract in writing whereby plaintiff sold and delivered to defendant one Ford truck with cab over engine, and plaintiff purchased from defendant one 1940 Chevrolet truck with two-speed axle, 7.50 front tires and 8.25-20 rear tires; that at said time plaintiff delivered said Ford truck to defendant and duly and properly assigned and delivered a certificate of title thereto and agreed to pay defendant upon delivery of said Chevrolet truck the sum of $682.18 in cash, including sales tax; that defendant has retained and does still retain said Ford truck of the contract value of $449 and has refused and still refuses to deliver to plaintiff said Chevrolet truck; that the contract value of said Chevrolet truck was and is $1,109; that plaintiff has made demand upon defendant for delivery thereof and delivery has been refused; that plaintiff has been damaged by the wrongful breach of said contract as aforesaid in the sum of $1,109, for which he prays judgment.

The answer denies generally the allegations of the petition and alleges that on or about April 1, 1940, plaintiff and defendant entered into negotiations with reference to trading motor vehicles, whereby plaintiff was to trade defendant a certain used 1939 dual wheel Ford truck for a 1940 Chevrolet truck and accessories, and was to pay defendant the difference of $682.18 to consummate the trade; that plaintiff to induce defendant to make such trade falsely and knowingly represented to defendant that the Ford truck was a 1939 model equipped with and to be delivered to defendant with dual rear wheels thereon; that in truth and in fact said truck was a 1938 model and dual rear wheels were not on said truck, nor was said truck delivered to defendant with such dual rear wheels thereon; that defendant believing and relying on the false and fraudulent representations of plaintiff entered into an agreement in writing referred to in plaintiff's petition, except that the used Ford truck was to be a 1939 model, whereas the agreement referred to in plaintiff's petition recites it to be a 1930 model, and that the true agreement between the parties both in writing and orally was that the Ford truck was to be a 1939 model; that defendant relying upon the false and fraudulent representation of plaintiff prepared to carry out its part of the contract, whereupon plaintiff delivered to defendant's place of business the Ford truck in question; that upon inspection of it by defendant it was discovered that it was not a 1939 model, and that it did not have dual rear wheels; that defendant immediately notified plaintiff that defendant would not go through with the trade and would not be bound thereby and notified plaintiff to come and get his Ford truck; that thereupon and thereafter defendant notified plaintiff that his Ford truck was on defendant's premises at the order of plaintiff and that plaintiff should remove it therefrom; that plaintiff did not have any title to the Ford truck he proposed to trade to defendant and never did deliver to defendant any title thereto; that said truck was not free of encumbrance, but was subject to a chattel mortgage for approximately $700, and that plaintiff at no time cleared said truck of said mortgage; that defendant still has said Ford truck for plaintiff, holding it at his order, and tenders it herewith to him again.

The reply denies generally the allegations of new matter in the answer, and denies specifically that plaintiff falsely represented the Ford truck to be a 1939 model, and alleges that he represented said truck to be a 1938 model in which he had installed a 1939 motor; that said truck was and is in fact a 1938 model with 1939 exchange motor therein; that the Ford truck traded to defendant was equipped with dual rear wheels; that at the time of the execution of said contract said dual rear wheels were not in place on said truck; that said dual rear wheels were and are available to and for defendant.

The trial with a jury resulted in a verdict in favor of plaintiff for $449. Judgment was given accordingly, and defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.

The evidence shows that on April 1, 1940, plaintiff and defendant entered into an agreement in writing, identified as exhibit 1, as follows:

                "Dealer's Name: Rueseler. Address
                   Cape
                 Purchaser's Name: H. R. Craig. Address
                   120 North
                 Please enter my order for 1 New 40 Chev
                   truck
                 Model C & Cab body type—Color: Black
                 To be delivered on or about soon as poss.
                   Salesman: H.
                 Make of used car: Ford. Year 1930.
                   Body Type: c. o. e.
                 Serial No. ______, Engine No. ______
                 Used car allow: $449.00. Bal. owed on
                   car $______.
                 Net Allow: $449.00
                 Cash delivered price of car: 133
                  u. cab                                     $ 750.00
                 Accessories: 2 speed axle                     110.00
                   7:10 Front—8:25-10 Rear               249.00
                                                              _______
                                                              1109.00
                 Allowance                                     449.00
                                                              _______
                                                               660.00
                 License transfer, title, registration
                   fee, tax                                     22.18
                                                              _______
                 Balance due on delivery—cash
                   sale                                        682.18
                 Purchaser's Signature: H. R. Craig
                Accepted by: Rueseler Motor Co., by W.
                   J. Benjamin."
                

At the time of the execution of this agreement and prior thereto plaintiff was a resident of the city of Cape Girardeau, in Cape Girardeau County, Missouri, and defendant was a dealer in automobiles with its place of business in said city.

Plaintiff held a certificate of title, identified as exhibit 2, issued to him by the secretary of state of Illinois on September 11, 1939, covering a motor vehicle described in said certificate as follows: "Name of car: Ford. Style of Body: Box. Year built: 1938. Factory No.: No number. Engine No.: 4634417. Horsepower: 30." In said certificate it was stated that the motor vehicle was not subject to any liens or encumbrances. There appears on said certificate an endorsement as follows: "Chattel mortgage on this motor vehicle within described, for $711.90, to St. Clair Loan Co. Inc. was filed in my office on Dec. 6, 1939, in Cape Girardeau County, Mo. E. W. Hink, Recorder." There is also endorsed on the certificate an assignment of the motor vehicle described therein duly signed by plaintiff wherein he warrants the title and vehicle to be free from all liens and encumbrances. The assignment is not dated or notarized, but the evidence shows that the assignment was executed and the certificate delivered at the time of the execution of the agreement hereinbefore set out.

There is also in evidence an order and invoice of Vogler Motor Company of Carbondale, Illinois, dated October 23, 1939, showing the installation of a 1939 cab-overengine motor FEV—163203, which, together with incidental repairs made a total labor and parts bill of $165.24, and was shown to have been made for Homer Craig.

Plaintiff testified that exhibit 1 is an order for a new truck which W. H. Benjamin, defendant's salesman, gave him at the time he made the trade for the Chevrolet; that Mr. Benjamin examined the Ford truck in the driveway at plaintiff's home in Cape Girardeau, three blocks from defendant's garage, possibly the same day that the sale agreement was signed; that exhibit 2 was delivered by him to Mr. Benjamin at the time of the trade; that it was delivered to Mr. Benjamin the same day that exhibit 1 was signed; that at the time he signed one he signed the other; that at that time the Ford truck was in the driveway at his home; that a boy from the Rueseler Motor Company came down to his house and got the truck the day after the trade was made, and that about a week later Mr. Benjamin called him up; that he hadn't seen the Ford truck since it left his driveway; that it was taken...

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