Crossan v. Noll
| Citation | 120 S.W.2d 189 |
| Decision Date | 03 October 1938 |
| Docket Number | No. 19090.,19090. |
| Parties | CROSSAN v. NOLL. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Harrison County; Rex H. Moore, Judge.
"Not to be published in State Reports."
Action by L. M. Crossan, doing business as the Crossan Motor Company, against E. H. Noll upon a note and mortgage given to secure payment of price of automobile, wherein defendant filed a counterclaim. From a judgment for the plaintiff, defendant appeals.
Affirmed and remanded, with directions.
C. C. Ross, of Bethany, for appellant.
James C. Wilson, of Washington, D. C., and Thomas R. Lawler, of Kansas City, for respondent.
SPERRY, Commissioner.
Plaintiff on November 17, 1934, sold and delivered to defendant a new automobile, and as a part of the purchase price thereof accepted the following note and mortgage:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Default was made in payments provided therein, the automobile was repossessed by G. M. A. C., to whom the note and mortgage had been assigned, was delivered to plaintiff, who sold it, and this suit was brought to recover the deficiency between the sale price and the amount paid, after crediting the amount received from the mortgage sale, and for attorney fees. The court directed a verdict for plaintiff. From the judgment based thereon this appeal is prosecuted.
Plaintiff pleaded the facts as to the making and delivery of the note, default in payment, sale of the car under the mortgage, application of the proceeds, and prayed for judgment for the balance due, plus attorney fees. He also pleaded the provisions of paragraph numbered six in the mortgage, supra.
Defendant, in his answer, admitted purchase of the car and execution of the note and mortgage. He also alleged that express and implied warranties were made by plaintiff as to the mechanical qualities of the car, which, he alleged, induced him to purchase same; and alleged that the car was mechanically defective so that it was worthless for the purposes for which it was intended; and set up a counter claim for the amount paid thereon.
Motions for judgment on the pleadings and to strike defendant's answer were ruled against plaintiff, who then filed reply alleging that the damages to and trouble with the car were due to its having been negligently driven at an excessively high rate of speed on the day it was purchased, under direction of defendant, while defendant was in an intoxicated condition.
The evidence on behalf of defendant tended to show that plaintiff told him the automobile had never been driven, and would give good satisfaction; that on the day of the purchase, and before it had been driven two hundred miles, the pistons stuck; that the pistons stuck again when the car had been driven about seven hundred miles; and again at about 1,600 miles. It was returned to the garage on each of said occasions for repairs, and the last time it was brought in defendant refused to take it back unless a new motor was put in and the car made good, which plaintiff refused to do; that the car was so mechanically unfit as to be valueless; and that no part of defendant's trouble with the car was due to any fault of his in the method and manner of care or operation. He denied causing it to be driven at an excessive rate of speed, while he was intoxicated, on the day the car was purchased, and said he did not read the mortgage before signing same, but there was no evidence that he could not read.
Circumstances in evidence for plaintiff tended to show the execution of the mortgage was a part of and simultaneous with the sale itself. The evidence also tended to show that defendant hired a man to drive the car to Kansas City that same afternoon; that defendant became intoxicated and ordered the car driven at seventy miles per hour and ran out of oil before arriving at Kansas City and "burned the motor up". It continued to give trouble thereafter. Plaintiff admitted writing letters to the Chevrolet manufacturer wherein he stated the car was defective when it left the factory, but said he did it at the request of defendant in an effort to help defendant get some financial help in repairing the car, although the damages were due solely to defendant's fault.
The court instructed the verdict on the theory that since the contract specifically excluded all warranties, express or implied, not mentioned therein (and none were mentioned), no warranties of any kind might be relied on by defendant to defeat the terms of the sale and mortgage.
From a consideration of all of the evidence in the case, including the facts and circumstances surrounding the sale of the car and the execution of the mortgage thereon, as well as the terms of the instrument itself, we are of the opinion that: The consummation of the sale and the execution of the mortgage were contemporaneous events, neither of which was or would have been consummated but for the consummation of the other; that the mortgage instrument is not only a mortgage, but that it is also a promissory note and a complete contract of sale; that the terms of the sale are not only complete and fully stated but that they are clear and unambiguous so as to leave no room for any of the ordinary rules of construction such as are urged by defendant; and that defendant's signature thereto was not procured by reason of fraud,...
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