Drown v. Tough

• Decision Date: 06 April 1931
• Citation: 38 S.W.2d 736,225 Mo.App. 1017
• Parties: WALTER LEE DROWN, APPELLANT, v. CLAUD TOUGH ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

38 S.W.2d 736

225 Mo.App. 1017

WALTER LEE DROWN, APPELLANT, v. CLAUD TOUGH ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Vernon County.--Hon. Charles A Hendricks, Judge.

AFFIRMED.

Judgment affirmed.

A. J King for appellant.

Richard K. Phelps for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in replevin, seeking the return to plaintiff of two promissory notes and the release and cancellation of a deed of trust securing one note for $ 300, and the release and cancellation of a chattel mortgage securing the other note for $ 550.

The suit arose out of a transaction involving the exchange of motor cars between the parties, all residents of Nevada, Vernon County, Missouri. Defendant Claud Tough is a dealer in automobiles and defendant Ola Tough is his wife. Defendant Harry Wood is an automobile salesman. Parties are not of one mind as to the facts, but, briefly stated, the undisputed elements thereof are as follows: Defendants, by their combined efforts, entered into an agreement with plaintiff to exchange an Essex sedan which was the property of Claud Tough, for an Essex coach belonging to plaintiff, both being second hand or used cars. The agreed difference in value was $ 550, in favor of the sedan, and for this amount plaintiff executed his note to be paid in small monthly payments extending over a considerable period of time, and for the payment of which a chattel mortgage was executed by plaintiff on the sedan.

Defendants' testimony is to the effect that because of the small deferred payments, extending over a long period, further security was demanded and to cover the same an additional note for $ 300, secured by a deed of trust on a piece of real estate owned by plaintiff in Nevada, was executed by plaintiff on the same date; and on the same day the chattel mortgage and deed of trust were placed of record in the office of the recorder of deeds of Vernon County. A provision was placed on the back of the $ 300 note that the said note and deed of trust were void when and if the $ 550 note was paid. It appears of record that at the time the aforesaid documents were executed the sedan was turned over to plaintiff and he used it for a few days, at the end of which time it was returned to defendants for repairs at their expense. It further appears, as stated by defendants, the sedan was sent to Kansas City, Mo., for that purpose. At this point the evidence in behalf of plaintiff and that of defendants is contradictory, plaintiff's testimony being that the reconditioning was to be completed within four days or a week and that the car was sent to Kansas City without plaintiff's consent, while defendants' testimony is that the car, in fact, was sent to Kansas City with plaintiff's full knowledge and consent, and the repairs were to be made within a reasonable time.

The documents were executed on June 17, 1929, and the car was not returned to Nevada until about July 30, 1929, at which time Claud Tough came to Kansas City and took the car back to Nevada and endeavored to make delivery to plaintiff who refused to receive it. Plaintiff testified that every few days after the expiration of the week in which the car was to have been delivered to him, he asked to have delivery made. Defendants' testimony is that, as per agreement, during this delay they furnished plaintiff a car for his use. Plaintiff states the car furnished was unsatisfactory. It is of record that, after waiting one month and nine days for delivery of the sedan, plaintiff caused to be served on Claud Tough a written notice demanding return of the notes and the release and cancellation of the chattel mortgage and deed of trust. This demand being refused, plaintiff filed his first petition herein on July 26, 1929. After service on defendants of the petition, the car was produced, as above stated.

On August 14, 1929, plaintiff filed his first amended petition, upon which the cause was tried, sounding in both law and equity. The petition alleged the facts relative to the execution of a set of papers, about which he knew nothing at the time and did not know what they contained; that he was told by defendants they were for the sedan; after signing the papers he was told defendants could not deliver the car for at least four days but it would be delivered within a week; that defendants were having some repairs done and "the repairs would be here in a short time." That he called upon Claud Tough for the car after four days and time and again after a week had expired and up until July 26, 1929, but that during all of said time no car was delivered to him; that shortly after signing the papers aforesaid, he learned that one of them was a note for $ 300, secured by a deed of trust on his home in Nevada, Mo., and payable on demand; that the other paper he signed "proved to be a cut throat chattel mortgage," dated June 17, 1929, securing the payment of $ 550 in installments, and was filed for record on the same day.

The petition alleges plaintiff has never at any time been offered or had tendered to him an Essex sedan by defendants or anyone else for the said notes aggregating $ 850; that after waiting one month and nine days, plaintiff caused written notice to be served on Claud Tough demanding return of said notes, and the release and cancellation of the deed of trust and mortgage notes, but that defendants refused to return said notes to plaintiff and now hold the same without any consideration whatever; that during all of said time, from June 17, 1929, to date of filing the petition plaintiff's premises have been encumbered by said deed of trust; that said notes, deed of trust and mortgage were fraudulently obtained and cite a consideration of $ 300 more than was ever mentioned in the conversation relative to the deal. Plaintiff pleads that by virtue of section 2249, Revised Statutes 1919, he is entitled to have and recover of defendant, Claud Tough, ten per cent of the $ 850, without tendering costs of the satisfaction of said mortgage, because of defendants having fraudulently had the same recorded and because the contract of sale or exchange was void from the beginning because of fraud; that he has been unable to sell or mortgage his property so encumbered by said deed of trust; that his credit has been greatly impaired by the recording of said instrument and that he is damaged in the sum of $ 100 thereby; that he has been at great expense in the employment of attorneys to bring this action and has been greatly damaged thereby; that defendants conspired and confederated together to cheat and defraud plaintiff out of his said automobile and $ 850, without any consideration whatever; that plaintiff is lawfully entitled to possession of said notes and to have said deed of trust and chattel mortgage released of record; that said notes are negotiable and have not been seized under any process; that for the fraudulent taking and detention of said notes and mortgages, after demand therefor, plaintiff has been damaged in the sum of $ 210; that he will become in danger of losing said notes and mortgage unless taken out of the possession of said defendant Claud Tough and released of record. The prayer is for the recovery of said notes, deed of trust and chattel mortgage and the release thereof of record, and the sum of $ 210 for the taking and detention of the same, and all damages...