Craig v. Rueseler Motor Co., No. 25860.
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | Sutton |
| Citation | 159 S.W.2d 374 |
| Parties | CRAIG v. RUESELER MOTOR CO., Inc. |
| Docket Number | No. 25860. |
| Decision Date | 03 March 1942 |
v.
RUESELER MOTOR CO., Inc.
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
[159 S.W.2d 375]
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...To continue reading
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Kesinger v. Burtrum, No. 7458
...Mo. 295, 165 S.W.2d 650, 653; Reliable Life Ins. Co. v. Bell, Mo.App., 246 S.W.2d 371, 376(5). 8 Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378(2); Robertson v. Snider, Mo.App., 63 S.W.2d 508. 9 Section 301.210(4); State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox......
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Moore v. State Farm Mut. Auto. Ins. Co., No. 8291
...City, Mo.App., 320 S.W.2d 72, 77-78(6); Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827, 830(2, 3); Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378 (5-7); Platner v. Bourne, Mo.App., 275 S.W. 590(2); Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317. 2 Sabel......
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M. F. A. Co-op. Ass'n of Mansfield v. Murray, No. 8119
...in footnote 9; Allstate Ins. Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 46(2, 3); Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378(4). See also State ex rel. Connecticut Fire Ins. Co. v. Cox, 306 Mo. 537, 545, 268 S.W. 87, 90(1), 37 A.L.R. 6 International Harvester Co......
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Bordman Inv. Co. v. Peoples Bank of Kansas City, No. 22747
...out-state and brought into Missouri there to be sold. Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827; Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374. Thus, although Watts had title before he could legally transfer his ownership he was required Page 78 to endorse and deliver the required ......
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Kesinger v. Burtrum, No. 7458
...Mo. 295, 165 S.W.2d 650, 653; Reliable Life Ins. Co. v. Bell, Mo.App., 246 S.W.2d 371, 376(5). 8 Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378(2); Robertson v. Snider, Mo.App., 63 S.W.2d 508. 9 Section 301.210(4); State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox......
-
Moore v. State Farm Mut. Auto. Ins. Co., No. 8291
...City, Mo.App., 320 S.W.2d 72, 77-78(6); Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827, 830(2, 3); Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378 (5-7); Platner v. Bourne, Mo.App., 275 S.W. 590(2); Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317. 2 Sabel......
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M. F. A. Co-op. Ass'n of Mansfield v. Murray, No. 8119
...in footnote 9; Allstate Ins. Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 46(2, 3); Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378(4). See also State ex rel. Connecticut Fire Ins. Co. v. Cox, 306 Mo. 537, 545, 268 S.W. 87, 90(1), 37 A.L.R. 6 International Harveste......
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Bordman Inv. Co. v. Peoples Bank of Kansas City, No. 22747
...out-state and brought into Missouri there to be sold. Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827; Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374. Thus, although Watts had title before he could legally transfer his ownership he was required Page 78 to endorse and deliver the required ......