General Motors Acceptance Corp. v. Vanausdall

• Decision Date: 28 May 1952
• Docket Number: No. 7050,7050
• Parties: GENERAL MOTORS ACCEPTANCE CORP. v. VANAUSDALL et al.
• Court: Missouri Court of Appeals

Page 1003

249 S.W.2d 1003

241 Mo.App. 499

GENERAL MOTORS ACCEPTANCE CORP. v. VANAUSDALL et al.

No. 7050.

Springfield Court of Appeals, Missouri.

May 28, 1952.

Fred L. Henley and Von Mayes, Caruthersville, for appellants.

McHaney & McHaney, Kennett, for respondent.

BLAIR, Judge.

The original petition was in replevin and for conversion against appellants and one W. L. Cain. This petition was filed in Pemiscot County and was in two counts. After plaintiff filed its amended petition and appellants, then defendants, had filed their motion to dismiss the case and their answer, the case was sent to Scott County on change of venue. There the case was tried on an agreement of the parties as to the facts involved. That agreement was known as Exhibit 5, and was as follows:

'Exhibit 5

'Stipulation

'Now on this day come the parties in the above entitled cause and waiving a jury agree to submit the above cause to the Court for its determination thereof, and for that purpose agree that the following are the facts upon which the same is to be decided:

'(1) Plaintiff claims to recover for the defendants under a conditional sales agreement on which there is an unpaid balance of $1078.56.

'(2) On January 6, 1948, Mrs. Marie Wright of Joiner, Arkansas, was the owner of one 1947 Fleetmaster Chevrolet Fordor, Maroon Sedan, Motor No. EAA669070, Serial No. 3EKL65000. On the date aforesaid Mrs. Wright made application for an Arkansas license in which she described the above automobile as being a 1947 Chevrolet Aero Sedan, and license was issued under this description.

'(3) On September 7, 1948, Buchanan Chevrolet Company of Osceola, Arkansas, acquired the above described vehicle from Mrs. Wright in a trade.

'(4) On the 17th day of November, 1948, the Buchanan Chevrolet Company of Osceola, Arkansas, at its place of business in said City, sold to one Ed Yowell, of Blytheville, Arkansas, a Chevrolet automobile describing the same in a conditional sales contract as a used 1947 Chevrolet Aero Sedan, Motor #EAA665020, Serial #3EK-L65000, which conditional sales contract provided the title to said property should not pass to the purchaser until the purchase price was fully paid. The purchase price of the said automobile was $2,170.08 with a down payment of $732.00, leaving a deferred balance due in the sum of $1,438.08, payable in twelve month installments of $119.84 commencing December 27, 1948, payable monthly on the same day of each successive month; that a copy of said conditional sales contract is hereto attached, marked 'Exhibit A' and made a part hereof.

'(5) That thereafter said Buchanan Chevrolet Company, for a valuable consideration sold and transferred said conditional sales contract to the plaintiff, General Motors Acceptance Corporation, a corporation, who is now the owner and holder thereof.

'(6) Three payments were made under said conditional sales contract leaving an unpaid balance thereon in the sum of $1,078.56.

'(7) On the 15th day of February, 1949, the said Ed Yowell purchased a license for and registered with the Department of Revenue of Arkansas an automobile, being described in said Registration Certificate as a 1947 model Chevrolet four-door, color Maroon, Motor #EAA669020, (no serial number stated), a copy of which registration is hereto attached, marked 'Exhibit B', and made a part hereof.

'(8) On the 29th day of March, 1949, the said Ed Yowell, while still a resident of Arkansas, traded and sold to the defendants L. K. Van Ausdall and L. K. Van Ausdall, Jr., doing business as Caruthersville Motor Company one 1947 Fleetmaster Chevrolet fordor, maroon Sedan, Motor No. EAA669070, Serial No. 3EKL-65000, and on said date transferred the Arkansas Registration Certificate described in Paragraph 7 above to the Caruthersville Motor Company.

'(9) Thereafter on May 17, 1949, the said Ed Yowell executed a Bill of Sale to the Caruthersville Motor Company for the automobile described in Paragraph 7 above, which Bill of Sale described the automobile as a Chevrolet Fordor Sedan, Motor No. EAA669020 Serial No. 3EK-I-65000, a copy of which Bill of Sale is hereto attached, marked 'Exhibit C', and made a part hereof.

'(10) Thereafter, on or about the 17th day of May, 1949, Caruthersville Motor Company made application for a Missouri Certificate of Title upon the automobile described in Paragraph 7 above, describing the same in accordance with the Bill of Sale described in Paragraph 9 above, a copy of which application is hereto attached, marked 'Exhibit D', and made a part hereof.

'(11) On May 23, 1949, the Caruthersville Motor Company sold the said automobile purchased from Ed Yowell to W. L. Cain of Caruthersville, Missouri, and on said date W. L. Cain made application for a Missouri Certificate of Title to be issued in his name using motor #EAA-669070, Serial #3EKL65000, a copy of said application being hereto attached, marked 'Exhibit E', and made a part hereof. Accompanying the aforesaid application by W. L. Cain was an affidavit signed by L. K. Van Ausdall, Jr. on behalf of Caruthersville Motor Company stating that the motor number as shown on the application referred to in Paragraph 10 above was erroneous in that the correct motor number was EAA669070, although the Serial Number was 3EKL65000 as stated in said application. A copy of said affidavit is hereto attached, marked 'Exhibit F', and made a part hereof.

'(12) Thereafter, on the 1st day of September, 1949, the plaintiff, General Motors Acceptance Corporation, a corporation, commenced a suit in the Circuit Court of Pemiscot County, Missouri, against these defendants and the said W. L. Cain, by the filing of its petition therein and the suing out of proper process on said date; that said suit was in two Counts, being Count I in replevin against the said W. L. Cain, and Count II in conversion against these defendants.

'(13) On the date of the commencement of said suit, that is, the 1st day of September, 1949, W. L. Cain had in his possession the automobile purchased by him from the defendants, and on said date the defendants, L. K. Van Ausdall and L. K. Van Ausdall, Jr., did not have the actual possession thereof.

'(14) Thereafter, on the 3rd day of September, 1949, a writ of summons was served on these defendants in said suit; that thereafter, on the same day, these defendants purchased from the said W. L. Cain the automobile previously sold to him; and, thereafter, on the same day process was served upon the said W. L. Cain in said suit.

'(15) Thereafter, on the 14th day of September, 1949, plaintiff dismissed said suit as to W. L. Cain and filed an amended petition therein in replevin only against these defendants, and thereafter, on the 15th day of September, 1949, a writ of replevin was served on these defendants.

'(16) Thereafter, it was agreed between the parties to said suit that the automobile replevined be sold to avoid depreciation in value and the proceeds be substituted for the automobile and be held by defendants instead or in lieu of the automobile to abide the final result of the said replevin suit then pending. Pursuant to this agreement defendants sold said automobile to Doley, Inc., of St Louis, Missouri, for the sum of $950.00, and this sum is now held by these defendants in lieu of said automobile in accordance with said agreement.

'(17) That an Aero Sedan is only a two-door Chevrolet automobile and a Fleetmaster Sedan may be either a two-door or a four-door Chevrolet automobile; that the body style of an Aero Sedan and a Fleetmaster Sedan, whether two-door or four-door, is different, and the outward appearance of each is different.

'(18) That the correct description of the automobile replevined...