Hickerson v. Con Frazier Buick Co.

Citation264 S.W.2d 29
Decision Date07 December 1953
Docket NumberNo. 21891,21891
CourtMissouri Court of Appeals

Perry M. Cortner and Dwight Beals, Kansas City, for appellant.

Harry I. Schwimmer, Robert B. Vaughan and Walter A. Raymond, Kansas City, for respondent.

CAVE, Presiding Judge.

This is an action for damages resulting from an automobile transaction under circumstances hereinafter detailed. The court sustained defendant's motion for a directed verdict at the close of plaintiff's evidence and entered judgment accordingly, from which plaintiff appeals.

Defendant (respondent) has filed motion to dismiss the appeal because the transcript was not filed within the time allowed by law and without the appellant's having secured an extension of time by this court to file the same. Our records show that on April 7, 1953, on motion of appellant we extended the time to file transcript to April 25, and that the transcript was filed on April 20. The motion is overruled.

The substance of the petition is as follows:

That plaintiff was the administratrix of the estate of Henry C. Thomas, deceased, and defendant was a corporation selling new and used cars; that on or about October 22, 1947, deceased purchased a new Buick automobile from defendant and gave defendant his check in full payment; that on same day defendant made, executed and delivered to deceased a certificate of title thereto; that defendant accepted said check in full payment; that thereafter the Missouri Commissioner of Vehicles issued a formal certificate of title thereto in the name of deceased; that deceased died October 23, 1947 and immediately thereafter the defendant unlawfully, wrongfully, wilfully, intentionally and maliciously took the automobile from the premises of deceased without the consent or permission of any legal representative of deceased and converted it to defendant's own use; that defendant failed to cash the check during the lifetime of deceased and refused to accept payment thereof from the administratrix; that administratrix made demand on defendant for return of the automobile and defendant refused to return it or give possession to plaintiff; that said automobile was an asset of the estate and it was her duty to sell the car for the highest possible price and had it sold for $500 above the purchase price but could not do so because of the wrongful, unlawful, intentional, wilful and malicious acts of the defendant; that plaintiff was actually damaged $500 and the usual prayer for $2500 punitive damages.

The answer admitted plaintiff was the administratrix of the estate of deceased, and that it was a corporation selling new and used cars, and denied all other allegations. As a bar to plaintiff's cause of action the answer alleged that the matters, facts, questions and issues were decided adversely to plaintiff in a former proceeding instituted by plaintiff against defendant in the probate court, wherein that court held that the deceased, nor his estate, nor the plaintiff ever, at any time, had title to the automobile in question, and that the order of the probate court was res judicata of the issues in the present suit.

A general outline of the evidence is that plaintiff's decedent (Henry C. Thomas) on October 22, 1947, contracted to buy an automobile from defendant, a retail dealer of new Buick automobiles; that decedent issued his checks for the full purchase price of the automobile and the other expenses incidental to such transaction; that defendant issued its bill of sale for the Buick, and assisted decedent in preparing the application papers for a state certificate of title and delivered them, together with the automobile, to decedent. This occurred about 11:00 a. m. October 22, and about 4:00 p. m. on the following day, and before the checks were deposited, Henry C. Thomas died. Immediately thereafter and on the same day, defendant's representative went to decedent's home and tendered the checks to his sister (who is plaintiff herein), and demanded a return of the automobile. She refused to accept the checks but the agent took the automobile over her protest. Later defendant deposited the checks but payment was refused because the drawer was deceased. Decedent mailed the application for the certificate of title before he died and it was issued in his name by the Director of Revenue on November 12, 1947.

After plaintiff was appointed administratrix she applied to the probate court for authority to use money of the estate to pay for the automobile. The court denied her application and she appealed to the circuit court where, in due time, she dismissed that case or proceeding and brought this suit.

Defendant contends that the decision of the probate court is final and binding on the plaintiff and that the present suit should be abated. The argument in support of this proposition is based on the general rule that the probate court has 'superintending control over the acts and doings of all persons handling estates in the court.' State ex rel. Lefholz v. McCracken, 231 Mo.App. 870, 95 S.W.2d 1239, 1244; Rollins v. Shaner, 316 Mo. 953, 292 S.W. 419, 421. That general rule has no application to the present question. Plaintiff appealed from the probate court order and then dismissed that proceeding in the circuit court. We think that dismissal had the effect of vacating the judgment or order of the probate court. Chapter 467 RSMo 1949, V.A.M.S., governs appeals from probate courts and Section 467.090 provides that when the transcript is filed in the circuit court 'the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, * * *.' This section is substantially the same as Section 512.270 governing appeals from the magistrate court. Since the early case of Turner v. Northcut, 9 Mo. 251, it has been held that when a plaintiff appeals from an adverse judgment in the justice of the peace (magistrate) court and dismisses his action in the circuit court, such dismissal has the effect of vacating the judgment of the justice. In Howard v. Strode, 128 Mo.App. 482, 495, 106 S.W. 116, 120, which was an appeal from the probate court, it is said: 'If we are governed by decisions relating to appeals from justices of the peace, it does not alter the matter that there had been a trial in the probate court and a judgment there. On appeal from the probate court a case is heard in the circuit court de novo the same as on an appeal from a justice of the peace. Rev.St.1899, Sec. 285. But, on appeal from the judgment of a justice to the circuit court, a plaintiff may dismiss his action in the latter court, thereby vacating and annulling the judgment of the justice. * * * It seems to be the law that the practice on appeal from a probate court is, mutatis mutandis, like that on appeal from a justice.' See also Leonard v. Security Bldg. Co., 179 Mo.App. 480, 162 S.W. 685; Lee v. Kaiser, 80 Mo. 431.

It follows that the proceedings in the probate court cannot be considered res judicata of the issues in the present suit.

Plaintiff (appellant) contends that the court erred in sustaining defendant's motion for a directed verdict because, under the facts, deceased's check was in law paid and title to the automobile passed to him as a matter of law. This contention is founded on certain undisputed evidence to the effect that the check was delivered to defendant about 11:00 a. m., October 22, drawn on a bank located within the same city as defendant's office and delivered to defendant at that time; that said bank did not close for business until 2:00 p. m. of that day; that the drawer of the check did not die until 4:00 p. m. the following day (Thursday); therefore the failure of defendant to present the check for payment during banking hours of the day of its delivery or on the next day after its delivery operated as payment of the indebtedness for which it was given.

Plaintiff relies on Section 401.186 RSMo 1949, V.A.M.S., and Farm and Home Savings and Loan Ass'n v. Stubbs, 231 Mo.App. 87, 98 S.W.2d 320, 335; and Maryland Casualty Co. v. Dobbin, Mo.App., 108 S.W.2d 166. Section 401.186 provides: 'A check must be presented for payment within a reasonable time after issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.' (Italics ours.) In the Stubbs case, supra, the court said, 98 S.W.2d at page 335: 'At common law and under the law as declared by the courts in Missouri, the rule appears established that, where a check is delivered by the drawer to the payee in the same place where the bank on which it is drawn is located, a reasonable time for its presentment, where no cause for delay appears, is within the banking hours on the day of its delivery or on the next day after its delivery.' Citing many cases. In that same case it was held that the acceptance by a creditor from his debtor of a check as other than absolute payment implies an undertaking on the part of the creditor to use due diligence in presenting the check for payment and a failure to do so will operate 'as payment of the indebtedness for which it was given, at least to the extent of the...

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