Howard Nat. Bank & Trust Co. v. Jones

• Citation: 238 S.W.2d 905
• Decision Date: 17 April 1951
• Docket Number: 28063,Nos. 28020,s. 28020
• Court: Court of Appeal of Missouri (US)
• Parties: HOWARD NAT. BANK & TRUST CO. v. JONES et al. (two cases).

Page 905

238 S.W.2d 905

HOWARD NAT. BANK & TRUST CO. v. JONES et al. (two cases).

Nos. 28020, 28063.

St. Louis Court of Appeals, Missouri.

April 17, 1951.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 18, 1951.

Jones, Hocker, Gladney & Grand and James C. Jones, III., all of St. Louis, for Howard Nat. Bank & Trust Co.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for E. B. Jones and Madrene Jones.

ANDERSON, Presiding Judge.

This is a suit by Howard National Bank and Trust Company, a corporation of Burlington, Vermont, as plaintiff, against defendants E. B. Jones and Madrene Jones, co-partners doing business as E. B. Jones Motor Company. The action was for damages for the conversion of an automobile. The petition alleged plaintiff's ownership and right to possession of the automobile in question under the terms of a conditional sales contract. The prayer of the petition was for damages in the sum of $1200, which was averred to be the reasonable market value of the automobile at the time of the alleged conversion. The trial resulted in a verdict and judgment in favor of plaintiff for the sum of $800. From this judgment, cross-appeals have been taken by the parties.

The following pertinent facts appear from the evidence. On October 19, 1945 the automobile in question, being a 1941 Dodge, was sold to Eugene Valiquette by Harold Mayo, an automobile dealer. This sale occurred in Burlington, Vermont, where both Valiquette and Mayo resided. The sale was made on a conditional sales contract. The sale price of the car was $1300. There was a cash down payment of $225, and a trade-in allowance of $275 on a used car, leaving a balance on the purchase price of $800. To the balance due, $137.65 was added to cover insurance, recording and finance charges, making a total of $937.65 due Mayo on the conditional sales contract. Said balance was by the terms of the contract payable in fifteen monthly installments of $62.51 each, commencing November 19, 1945. The conditional sales contract provided:

'1. Purchaser agrees: that title to said property shall not pass to the Purchaser until all sums due under this contract or rearrangements thereof, together with interest after maturity and all other debts and money obligations arising out of this lien, are fully paid in cash; * * * not to remove property from the state or transfer any interest therein without written consent of the Seller; * * *.

'2. Time is of the essence of this contract and if any installment is not paid in full when due, or if Purchaser fails to perform any of his obligations or comply with any condition of this contract * * * this contract shall be in default and the full amount remaining unpaid shall immediately become due and payable. * * * Upon any such default, Seller may take immediate possession of said property, including any equipment or accessories thereto without legal process, without demand and for this purpose Seller may enter any premises where said property may be found and remove same. * * *

'3. Purchaser acknowledges notice of the intended sale of this contract to Howard National Bank and Trust Company of Burlington, Vermont.'

Thereafter, and on the same date, to wit, October 19, 1945, said conditional sales contract was sold to Howard National Bank and Trust Company of Burlington, Vermont, for the sum of $800. The assignment, executed by Mayo at said time, reads as follows: 'For value received, Undersigned does hereby sell, assign and transfer to the Howard National Bank and Trust Company of Burlington, Vermont, hereinafter called 'Bank,' its successors and assigns, all of his, its or their right, title and interest in and to the contract on the reverse side hereof and the property referred to therein, with power to take legal proceedings in the name of the Undersigned or itself in respect thereto.'

At the same time, Mayo executed the following written guaranty of said account 'For value received, we jointly and severally guarantee to pay the Howard National Bank and Trust Company of Burlington, Vermont, on demand, the entire unpaid balance of the contract on the reverse side hereof if any installment is in default, * * *'.

The parties to this transaction also at the time signed a memorandum of the sale showing the purchase of the car in question and an acknowledgment of its delivery to the purchaser. It contained a description of the car, and set out the terms of sale, as follows:

'The terms of this purchase and sale are as follows: $225.00 cash; $275.00 allowance on vehicle traded in; leaving a Deferred Balance of $937.65 payable in 15 equal, consecutive monthly installments of $62.51 each, commencing Nov. 20, 1945.

'Title to the above described vehicle together with all equipment and accessories already thereon or hereafter added, remains and shall continue in Seller or assigns until the full purchase price is paid in cash, as provided herein and in accordance with a promissory note and agreement executed contemporaneously herewith. If any deferred payments are not made when due, or if I/We shall be otherwise in default, Seller or assigns of representatives may take possession of said vehicle and all accessories thereon. The said vehicle shall not be removed from the above county and state, and I/We shall not lend, mortgage, assign, encumber, secrete or dispose of said vehicle or any interest therein until I/We have made all payments thereon. Said vehicle shall not be used in violation of any laws.'

As a part of the above mentioned memorandum, and over the signature of Harold F. Mayo, appears the following:

'This Contract has been assigned to Howard National Bank and Trust Company of Burlington, Vt.'

The above document was filed for record in the City Clerk's office in Burlington, Vermont, on October 30, 1945, and recorded in Volume 60, page 199, of the conditional sales records of the said city of Burlington.

Also at the time of sale Mayo delivered to Valiquette the following certificate on a printed form:

(The parts italicized are in handwriting)

'This Is To Certify that the following described motor vehicle: Make Dodge, Type sed. cpe., Year Mfg. 1941, Engine No. D19-122139, Registration Plate No. 70777 has on this date 10/19 1945 been Sold To Eugene Valiquette

Address 24 St. Paul, Burlington, Vt.

'That the registration certificate and application for transfer of registration has been mailed to the Motor Vehicle Department Or Loaned To ........

Address ........

'a period not in excess of three days under the provisions of Section 5065, Motor Vehicle Laws and for the following reasons:

........

Harold F. Mayo ..... Dealer No. 058 original'

The circumstances in connection with the delivery of the foregoing memorandum to Valiquette are not developed in the evidence.

Mr. Mayo had never had any previous dealings with Valiquette, and Mayo's acquaintance with Valiquette covered a period of only two or three months. During that period Mayo knew that Valiquette operated a body and fender shop in Burlington. The only contact that Mayo ever had with Valiquette was when he talked to him about the sale of the car. Mayo knew nothing about Valiquette's business habits. One of the references that Valiquette gave was the Chittenden National Bank. Mayo testified that he called the Chittenden Bank and learned that Valiquette had a large note at that bank but that the note was being taken care of. Mayo made no further investigation.

On December 21, 1945, Valiquette made an application to the Secretary of State of Missouri for a certificate of title on said automobile. In said application Valiquette gave as his address 1618 Chestnut Street, St. Louis, Missouri. Also, across that part of the application which called for information concerning any liens or unpaid balance of the purchase price the words 'all paid' are written. Along with said application Valiquette submitted the certificate which he received from Mayo at the time he purchased the car. Upon this application a Missouri certificate of title was issued to Valiquette by the Commissioner of Motor Vehicles.

Thereafter, Valiquette sold the car in question to the E. B. Jones Motor Company for $1,090, and assigned his certificate of title to said company of February 28, 1946. On the same day, February 28, 1946, the E. B. Jones Motor Company sold the automobile to Francis Elder for $1290, and on said date the title was reassigned by E. B. Jones Motor Company to Francis Elder.

Harold F. Mayo testified that the reasonable value of the automobile on October 19, 1945, was around $1300. He further testified that he first learned sometime in December 1945, that Valiquette had left the State of Vermont with the automobile, and that he had not given Valiquette permission to take the car out of the State of Vermont. He further testified that when he learned that Mr. Valiquette had left Burlington he did not ascertain where Valiquette had gone.

Arthur E. Graves, credit manager of the Howard National Bank and Trust Company, testified that Valiquette made none of the payments called for by the conditional sales contract, and that according to the bank's records the entire amount of the note was due and payable. It was admitted by the defendants that on January 27, 1947, or January 28, 1947, they received a demand from the Howard National Bank and Trust Company through its attorneys--Jones, Hocker, Gladney and Grand--for the return of the 1941 Dodge automobile or payment of $966.41 due them on the conditional sales contract. At that time the car had been sold by the E. B. Jones Company and was not in its possession.

At the time Valiquette defaulted in his payments the plaintiff bank charged the full amount due against the account of Harold F. Mayo. It was admitted by plaintiff's counsel that any sum recovered in this action would be held in trust for Harold F. Mayo.

At the close of all the evidence both parties filed motions for directed verdicts....