Exchange Nat. Bank of Jefferson City v. Hinkel
| Decision Date | 05 April 1943 |
| Docket Number | No. 20279.,20279. |
| Parties | THE EXCHANGE NATIONAL BANK OF JEFFERSON CITY, A CORPORATION, APPELLANT, v. JOHN HINKEL, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from Morgan County Circuit Court. — Hon. Sam C. Blair, Judge.
AFFIRMED.
Ragland, Otto & Potter and Leon P. Embry for appellant.
(1) The trial court erred in refusing plaintiff's requested Instruction No. P-1, the same being in the nature of a peremptory instruction directing a verdict for the plaintiff. Plaintiff's chattel mortgage was filed for record in the county of the mortgagor's residence. Sec. 3486, R.S. Mo. 1939; Bank of Malden v. Wayne Heading Co., 198 Mo. App. 601. If the mortgage had been recorded in the wrong county, the burden would have been on defendant to show such fact. Natl. Bond & Inv. Co. v. Mound City F. Co. (Mo. App.), 161 S.W. (2d) 664, 668. Removal of the mortgaged truck from Cole County to Moniteau County did not impair the lien of the mortgage. Feurt v. Rowell, 62 Mo. 524, 526. The truck was specifically identified in the mortgage and the mortgage being thus filed, the defendant is conclusively presumed to know and, in legal effect, did know that the truck was mortgaged. Commission Co. v. Kent (Mo.), 5 S.W. (2d) 395, 401. Plaintiff made a prima facie case. Natl. Bond & Inv. Co. v. Mound City F. Co. (Mo. App.), 161 S.W. (2d) 664, 668. The chattel mortgage, the record of the filing thereof, and the maturity of the debt all being shown by documentary evidence, and defendant's possession being shown by documentary evidence in the form of the forthcoming bond, there being no evidence sufficient to submit any affirmative defense, plaintiff's Instruction P-1 should have been given. Trimble v. Edwards (Mo. App.), 281 S.W. 121, 122. The mortgagor being a registered dealer in motor vehicles, and the truck being a new one, which had never been registered, the truck could be mortgaged by him even though no certificate of title had ever been issued therefor by the motor vehicle department. Interstate Securities Co. v. Barton (Mo. App.), 153 S.W. (2d) 393, 395, et seq.; Vetter v. Browne (Mo. App.), 85 S.W. (2d) 197, 198, et seq. But, since defendant claims the truck through the same person under whose mortgage plaintiff claims, defendant cannot question that person's right to give the mortgage. Natl. Bond & Inv. Co. v. Mound City F. Co. (Mo. App.), supra, 161 S.W. (2d) 664, 667-8. There was no evidence that the mortgagor had the right to convert the proceeds of the mortgaged property to his own use. Absent that, the mortgagor retaining the property for sale in ordinary course of business would not make the mortgage void or fraudulent. Osborn v. Standard Securities Co. (Mo. App.), 4 S.W. (2d) 503, 504; Bank v. Powers, 134 Mo. 432, 445. There was no evidence that plaintiff agreed orally or otherwise, after taking the chattel mortgage on the truck that the mortgagor could sell the truck. A mortgagee can waive his mortgage by giving such consent but to do so the consent must come after the giving of the mortgage. Van Sant v. Live Stock Comm. Co. (Mo. App.), 295 S.W. 506, 508; Gorin Savings Bank v. Early (Mo. App.), 260 S.W. 480, 482. A mortgagee does not waive his lien by permitting the mortgagor to sell the property under an agreement that the mortgagor would account to the mortgagee. Hart v. Farmers Bank (Mo. App.), 28 S.W. (2d) 121, 124. Under some circumstances, a mortgagee, by his course of dealing with a mortgagor, may impliedly consent to sales of mortgaged property so as to waive the mortgage lien. Commission Co. v. Kent (Mo.), 5 S.W. (2d) 395. There was no evidence that defendant knew of, or relied upon, any act of, or course of dealing by, the plaintiff. State ex inf. v. Mo. Utilities Co. (Mo.), 96 S.W. (2d) 607, 614. (2) The trial court erred in overruling plaintiff's objections to the question put to witness Haldiman. Gorin Savings Bank v. Early (Mo. App.), 260 S.W. 480, 481. (3) The trial court erred in overruling plaintiff's objections to the question put to witness Gates. Gorin Savings Bank v. Early, supra. The trial court erred in refusing plaintiff's Instruction No. P-2 as offered and modifying the same. Instruction No. D-3 was erroneous and should not have been given. Any practice, to constitute a waiver of the mortgage lien, would have had to be subsequent to the giving of the mortgage. Van Sant v. Live Stock Comm. Co. (Mo. App.), supra, 295 S.W. 506, 508; Gorin Savings Bank v. Early (Mo. App.), supra, 260 S.W. 480, 482. In all except two instances, the plaintiff held the certificates of title to the cars on which it made loans. Sec. 8382 (c), R.S. Mo. 1939. The two instances would not have been sufficient to constitute a practice. Marker v. Cleveland (Mo. App.), 252 S.W. 95, 96. The keeping of the car for sale in the usual course of business did not void the mortgage without the right to convert, or direct the disposition of, the proceeds of the car. Osburn v. Standard Securities Co. (Mo. App.), 4 S.W. (2d) 503, 504; Bank v. Powers, 134 Mo. 432, 445.
J.B. Gallagher and Roy D. Williams for respondent.
(1) The court properly submitted the case to the jury because the plaintiff had waived the lien of the chattel mortgage (a) by a course of dealing, and (b) by consenting to the sale of the truck. Moffett Bros. & Andrews Commission Co. v. Kent, 5 S.W. (2d) 395, 400; Stockyards National Bank v. Wool Co. (Mo.), 289 S.W. 623, 632; Rogers v. Davis, 194 Mo. App. 378, 388, 184 S.W. 151; De Witt v. Syfor, 202 Mo. App. 469, 211 S.W. 716, 719; Coffman v. Walton, 50 Mo. App. 404; National Bank of Commerce v. Morris, 125 Mo. 343, 28 S.W. 602; Gorin Savings Bank v. Early, 260 S.W. 480, 481. (2) The declarations of Bosch, the representative of the plaintiff bank, showing the right to sell by the mortgagor were competent. Hawken v. Schwartz, 72 S.W. (2d) 880; Lutzenberger v. Dent, 31 S.W. (2d) 395.
In this case the plaintiff seeks to recover from defendant, by action in replevin, a one-half ton Dodge pickup truck.
It appears that one John H. Bunch, a dealer of motor cars, formerly in Jefferson City, Cole County, Missouri, but at the time herein involved, in California, Moniteau County, Missouri, sold to John Hinkle, the defendant, the aforesaid truck for cash. At the time of sale, said truck being new, no certificate of title had been issued. It appears that prior to and after the removal of sales location of John H. Bunch to California, Missouri, the plaintiff, a banking corporation, extended credit to the said John H. Bunch. Said Bunch was a dealer in both new and used motor trucks. To secure the plaintiff for money loaned, the said Bunch would execute a chattel mortgage on said trucks to the plaintiff and in the case of used trucks, where certificates of title had been issued, said certificates were deposited with plaintiff.
The record discloses but one instance other than the one involved herein, where new trucks for which no certificates of title had been issued, were involved.
As to residence of said Bunch it appears, at least it is not contradicted, that his residence was in Cole County, Missouri, and the chattel mortgages given by Bunch to the plaintiff were duly filed in Cole County, Missouri.
Plaintiff's statement and application in replevin were in due form, asking for possession of the truck and for $50 damage for taking and detention.
Issues were joined by defendant filing answer of general denial, and further answering alleging that said truck, being a new truck, and pursuant to motor vehicle laws not registered, and that defendant paid full value for same and received a bill of sale on prescribed form, and received a certificate of title for said truck under the Motor Vehicle Laws of Missouri; that the defendant was the owner of said truck as an innocent purchaser thereof for value without notice or knowledge of any purported claim of plaintiff, and is entitled to possession of same.
Defendant further answers:
"For further answer defendant is advised and believes that plaintiff is asserting some claim or right to said truck by reason of a purported chattel mortgage, reputed to have been executed by the Bunch Motor Company, a dealer, and, if so, defendant states that such a purported chattel mortgage is null and void, is fraudulent and unenforcible and plaintiff is estopped from asserting any claim, right or title under the same, and that plaintiff cannot recover against defendant, for the following reasons, to-wit:"
Thereafter, defendant, further answering, raised question as to the validity of plaintiff's claim by alleging failure of plaintiff to follow statutory provisions provided in Sections 8382, 8404, Revised Statutes Missouri 1939. However, the defendant prosecuted its defense in the trial court on issue of plan or course of business followed by plaintiff in its dealing with Bunch, the auto dealer. As to the same, defendant alleges as follows:
"That plaintiff, over some considerable period of time, had a plan and course of business of financing the Bunch Motor Company, before and during the time the said Bunch Motor Company was doing business in the City of California, Moniteau County, Missouri, by extending credit to it in a sum not exceeding $8000; that the said Bunch Motor Company was a dealer in motor vehicles and gave checks on the plaintiff bank from time to time which were honored and paid by plaintiff; that the Bunch Motor Company executed purported chattel mortgages to plaintiff from time to time to secure a part of all of such credit; that the personal property covered by said chattel mortgages consisted largely of motor vehicles; that plaintiff by its course of business with the Bunch Motor Company permitted said company to retain possession of all of the personal property covered by said purported chattel mortgages with the power to sell and dispose of same in the ordinary course of business of said Bunch Motor Company for the benefit of said ...
To continue reading
Request your trial