David Plaut Securities Co. v. Cooper

• Decision Date: 11 February 1924
• Docket Number: No. 14959.,14959.
• Citation: 258 S.W. 455
• Parties: DAVID PLAUT SECURITIES CO. v. COOPER
• Court: Missouri Court of Appeals

258 S.W. 455

DAVID PLAUT SECURITIES CO. v. COOPER

No. 14959.

Kansas City Court of Appeals. Missouri.

February 11, 1924.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by the David Plant Securities Company against C. O. Cooper. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Harry R. Jenkins, Mosman, Rogers & Buzard, and Miller, Camack, Winger & Reeder, all of Kansas City, for appellant.

Griffin & Orr, of Kansas City, for respondent.

BLAND, J.

This is a suit in replevin to recover from the defendant the possession of an automobile. Plaintiff in its original petition based its right to recover upon the allegation that it was a purchaser in due course of a certain promissory note in the sum of $964.16, executed by the defendant and payable in installments; that said note was secured by a chattel mortgage upon the automobile in question; that there was a balance due upon the note, the payment of which had been demanded of the defendant which was refused. Plaintiff prayed judgment for the possession of the automobile. During the trial of the case it was first discovered by plaintiff that no mortgagee was mentioned in the chattel mortgage, and plaintiff thereupon filed an amended petition (the second amended petition) in two counts. The first count asked that the chattel mortgage be reformed by the insertion of the name of the R. D. White Motor Company as mortgagee in said instrument, the automobile having been purchased from that company by the defendant—it being alleged that, through a mistake of the scrivener who drew the chattel mortgage, the name of the mortgagee was omitted; that the mortgage was executed and delivered to the R. D. White Motor Company without expressing the mutual intent of the parties, but was executed and delivered by the defendant and was received by the R. D. White Motor Company under a mutual mistake of fact; that it was intended by the defendant and the motor company that the latter was to be named as mortgagee, but through the mistake of the scrivener and the mistake of both defendant and the motor company the name of the latter was omitted from said instrument, and that said instrument as executed and delivered to plaintiff does not correctly set forth the agreement between the defendant and the motor company as intended at the time of the execution of the mortgage; that plaintiff purchased in due course the note and mortgage from, the motor company, believing that the motor company was named as mortgagee in the mortgage. The second count pleads a cause of action in replevin for the possession of the automobile, based upon the default in the payments on the note secured by the mortgage.

The answer to the first count of the second amended petition is a general denial, and it further denies that defendant executed the note and mortgage referred to and made a part of the first count of plaintiff',s petition, and denies that there was any mistake of the scrivener as alleged in said count, and alleges that the note and mortgage were signed in blank and were later filled out in the form and manner as they now appear without defendant's knowledge or consent, and that said note and chattel mortgage as the same now appear were never executed or delivered by the defendant to any person whomsoever. The answer also denies that plaintiff was an innocent purchaser of the note and chattel mortgage. The answer to the second count of plaintiff's petition denies that defendant executed in the manner and form the note and chattel mortgage as pleaded, denies that plaintiff was an innocent purchaser of the note and mortgage, and pleads that defendant is entitled to the possession of the automobile and that the same had been wrongfully taken out of his possession by virtue of the writ of replevin sued out by plaintiff, and asks damages in the sum of $1,500 by reason of the wrongful taking and detention of the automobile.

The court struck out all of the evidence introduced on the first count of the petition refusing to reform the chattel mortgage, and directed the jury to find for the defendant on the second or law count, leaving to the jury to fix the amount of the damages. The jury returned a verdict finding the issues for the defendant, and that he was entitled to the automobile in question, and that the value of the automobile was $1,450, and found that defendant was entitled to damages for the detention of the car in the sum of $625. The court required defendant to remit all but $100 of the damages allowed by the jury, and rendered judgment in favor of the defendant for the value of the automobile as found by the jury and 8100 damages. Plaintiff has appealed.

Plaintiff insists that the court erred in striking out the evidence offered in support of the first count of plaintiff's second amended petition, refusing to reform the chattel mortgage. The facts in connection with this (the equity) count of the petition, which sought to reform the chattel mortgage by inserting the name of the mortgagee, are as follows: On the 9th day of May, 1921, defendant, with other members of his family, was at the place of business of the R. D White Motor Company for the purpose of buying an automobile; that through negotiations with one Fitzgerald, an agent of the motor company, the purchase of the car was arranged; that plaintiff was at that time the owner of an Essex automobile, which had a mortgage on it, which he traded in upon an agreed valuation on the automobile that he purchased of the R. D. White Motor Company, the mortgage to be paid by the latter, and the amount thereof was charged to the defendant, along with the balance of the purchase price of the new car, after giving credit to defendant for the Essex car as a cash payment on the new car. There was a matter of a certain insurance premium adjusted, and the balance due the motor company was charged to the defendant, for which he gave the note and chattel mortgage in question. There is a disagreement between the parties as to what this balance was, but in defendant's brief it is stated:

"The assumption may be safely indulged that Cooper [the defendant] was to give the White Motor Company a chattel mortgage on this new Allen car securing the note" for the proper amount due.

Defendant testified that he signed several papers in blank at the time, but said he did not know what they were, and, upon being repeatedly asked what they were, refused to say anything but that he signed "some papers." His wife testified that she was present, and that the papers were signed "to show we bought the car." Defendant testified that, after signing these papers, White, an officer of the motor company in charge of the drawing of the papers, told him that he (White) was in a great hurry and would mail the papers to the defendant later in the week. In defendant's brief it is admitted that he "trusted White to fill them [the papers] out correctly." Fitzgerald testified for the defendant, and stated that he also was present when the mortgage and note were signed, and that they were signed in blank; that White said that he would fill them out the following morning.

White, testifying for plaintiff, stated that he remembered the circumstance of the motor company's selling the car to the defendant and taking in the deal a car then owned by the latter; that he remembered nothing about the transaction, except from the note and chattel mortgage; that he had no independent recollection of the time defendant signed the papers, and that he did not know whether or not he (White) was present. Defendant testified that White was present at the time the papers were signed. White further testified that he had no independent recollection as to what price the new car was to be sold for. He testified that the blanks in the chattel mortgage were filled in by him before the defendant signed the chattel mortgage, but, when his attention was called to the fact that the name of the mortgagee was not filled in the blank space left for the same in the mortgage, he testified that part, of course, was not filled in, and gave as a reason therefor that it was an oversight on his part; that the company had a stamp which showed the firm name, and that he should have had the girl stamp the name of the mortgagee in the blank provided for that purpose, but through oversight he failed to do so, and that it was his error alone. Nothing was said to defendant at the time about the name to be put in the...