General Motors Acceptance Corp. v. Holland, 4809.

• Decision Date: 12 September 1930
• Docket Number: No. 4809.,4809.
• Citation: 30 S.W.2d 1087
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION v. HOLLAND.
• Court: Missouri Court of Appeals

30 S.W.2d 1087

GENERAL MOTORS ACCEPTANCE CORPORATION v. HOLLAND.

No. 4809.

Springfield Court of Appeals. Missouri.

September 12, 1930.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be officially published."

Suit by the General Motors Acceptance Corporation against Mattie Holland. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Shelley I. Stiles and Sam J. Corbett, both of Caruthersville, for appellant.

Sharp & Baynes, of New Madrid, for respondent.

BAILEY, J.

This is a suit on a written guaranty alleged to have been executed by defendant. Notes, for which the guaranty was made, were given by one Camille Atkins, evidencing deferred payments on the purchase price of an automobile. In its petition plaintiff alleged that on the 25th day of September, 1925, defendant, by her instrument of writing, guaranteed payment to plaintiff of whatever sum Camille Atkins might owe on one new Chevrolet coupé, for any unpaid balance on a contract entered into by Camille Atkins; that Camille Atkins executed her instrument of writing September 25, 1925, to the Allen Motor Company, by which she agreed to pay $373.42 in twelve months, with interest at 8 per cent. etc.; that said written guaranty provided that, in consideration of the making of the "within mortgage by the dealer therein, and of the purchase thereof by General Motors Acceptance Corporation, the undersigned hereof guarantees payment of all deferred payments as specified therein and covenants in default of payment of any installment or performance of any requirements thereof by mortgagor to pay full amount remaining unpaid * * * upon demand"; that, after allowing credit for $100 from sale price of the repossessed car, a balance of $272.42 was due and unpaid, for which amount, with interest, judgment is prayed.

The answer consisted of a plea of non est factum, and alleged as a further defense that, "if defendant's signature appears on the said instrument or writing sued on, it was placed thereon without reading the same and in reliance of the statement of the said C. H. Allen, that by signing same this defendant did not promise to pay any money or become in any way liable thereon but that by signing the same she gave her consent for her granddaughter, one Camille Atkins, to purchase a car from defendant, that it was explained to defendant that said Camille Atkins being then a minor, it was necessary for defendant to give her consent in writing to the contract of said Camille Atkins so that said Allen Motor Company could collect their commission for the sale of the said automobile, that defendant is an aged woman of no business experience, barely able to read, and that the said instrument is printed in a very small type so that defendant was wholly unable to read the same and had to depend upon said Allen to read the same for her and that said Allen explained the said instrument as not in any way binding defendant to pay any money or in any way being liable thereon for the payment of any money in case said Atkins did not pay; that at the time there was executed between the plaintiff acting by and through the said C. H. Allen and this defendant and as part of the same identical transaction a written instrument in words and figures as follows, to-wit:

                           "`New Madrid, Missouri. 10/26/25
                

"`C. H. Allen agrees that Mattie Holland who has this day signed mortgage with Camille Atkins for Chevrolet Coupe in sum of $373.42 will not be held responsible for the payment of same in the event that said Camille Atkins defaults in payment of same.

                                "`[Signed] C. H. Allen.'"
                

The answer further set up that plaintiff's said agent repossessed the automobile for which the mortgage and notes had been given by Camille Atkins, and, after taking possession, used same for a long period of time, causing it to greatly depreciate in value before it was sold, and thereby plaintiff was estopped to claim anything from defendant under said pretended guaranty. Upon such issues the cause was tried to a jury in Pemiscot county, where it was sent on change of venue from New Madrid county. From a verdict and judgment for defendant, plaintiff has appealed.

Error is assigned because the trial court permitted defendant to show statements made by C. H. Allen to the defendant at the time he obtained her signature to the guaranty, without first showing that Allen was acting as plaintiff's agent with authority to make representations to the effect that, if she would sign the guaranty, it would help him get his commission and that she would never have to pay anything on it. In particular, the introduction in evidence, over plaintiff's objection, of the memorandum signed by C. H. Allen, heretofore set out in defendant's answer, absolving defendant of all liability, is claimed as error.

The question of the agency of the Allen Motor Company thus became a decisive one in this case. The burden of proving that the agent had authority, either express or implied, to make the contract by which defendant was not to be liabile on the guaranty, was upon defendant who claimed the benefit of such an agreement. Matlack v. Paregoy, 188 Mo. App. 95, 173 S. W. 8; 2 C. J. p. 923, par. 662. The statement of defendant as to the facts is clear and accurate. It is in part as follows:

"The Allen Motor Company was at the time of the transaction herein complained of a dealer in automobiles, and an approved dealer whose sales would be financed by appellant, and as such did on the 25th day of September, 1925, sell to one Camille Atkins a certain Chevrolet Coupe on the deferred payment plan and secured from the said Camille Atkins the note and mortgage set out on page five to ten inclusive of appellant's abstract. The transaction in that form was fully completed on the 25th day of September, 1925, and the automobile delivered to the purchaser. When the original mortgage was first offered to appellants they refused to purchase same on account of having discovered the fact that the maker thereof, Miss Atkins, was at the time a minor and the note and mortgage was accordingly returned to the dealers. About a month thereafter the Allen Motor Company through Mr. C. H. Allen its general manager went to New Madrid and in a conversation with respondent, a woman of advanced age (74 years) told her that in order to obtain his commission on the transaction with Miss Atkins it was necessary for her, she being the grandmother of Miss Atkins, to give her consent to the purchase of the car by Miss Atkins and presented to respondent a document printed in very fine print which respondent was wholly unable to read, but which Allen told her was the consent for the purchase of the car by Miss Atkins which he desired (Abstract, page 25). Respondent did not want to sign the paper presented but was assured that by so doing she did not incur any liability whatsoever and for the purpose of assuring respondent that such was the case wrote out and delivered to her a statement (heretofore set out). * * *

"And thereupon, Mrs. Holland relying upon Allen's statement of what the paper she was signing contained placed her signature thereto.

"Thus the matter stood until the maturity of the note and mortgage which was given for one year when upon demand being made of Camille Atkins to pay it she defaulted and thereafter the same Allen came to New Madrid where Miss Atkins was then living demanding either that she pay the note in full or in default thereof surrender the possession of the automobile. Allen stating to her that the parties who held the note and mortgage had demanded of...