Isaacson v. Van Gundy

• Decision Date: 03 November 1930
• Docket Number: No. 16998.,16998.
• Citation: 48 S.W.2d 208
• Parties: ISAACSON v. VAN GUNDY.
• Court: Missouri Court of Appeals

48 S.W.2d 208

ISAACSON v. VAN GUNDY.

No. 16998.

Kansas City Court of Appeals. Missouri.

November 3, 1930.

Certiorari Granted December 1, 1930.^*

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Lester O. Isaacson against Elvis W. Van Gundy. Plaintiff recovered verdict and judgment, but the trial court granted defendant a new trial, and, from the order granting a new trial, plaintiff appeals.

Affirmed.

Randolph & Randolph, of St. Joseph, for appellant.

Henry B. Hunt and Clayton W. Allen, both of Rock Port, for respondent.

BLAND, J.

This is an action in replevin to recover the possession of three motor trucks. There was a verdict and judgment in favor of plaintiff. The court granted defendant a new trial on the ground that it erred in refusing to give defendant's peremptory instruction at the close of all the testimony and in refusing defendant's instruction C. Plaintiff has appealed.

The facts show that defendant, who lived at Fairfax, was engaged in the trucking business; that on July 24th, 1928, or August 2nd of that year, defendant purchased of plaintiff a GMC truck. This truck had formerly been owned by one Sie Rolston of Ravenwood and was registered in his name. When plaintiff purchased the truck from Rolston the certificate of title was properly assigned and delivered to the plaintiff by Rolston. This certificate was duly assigned to the defendant by the plaintiff and delivered to him on or about August 2nd, 1928.

Defendant gave plaintiff a chattel mortgage in the sum of $2,190.00 upon the truck, dated July 24th, 1928. Defendant having failed to make the payments provided in the mortgage plaintiff brought a replevin suit and took possession of the truck under the writ of replevin issued therein. The evidence shows that this replevin suit was brought "under this mortgage." Thereafter and while said suit was pending on April 9th, 1929, the suit was compromised and the parties entered into a written agreement by which the suit was dismissed and defendant gave plaintiff a note in the sum of $2,190.00, and to secure the note executed a chattel mortgage upon said truck and two other trucks. Defendant failed to pay certain installments falling due under the terms of this last mentioned mortgage and this suit was instituted to recover possession of the trucks mentioned in said mortgage.

One of the main controversies in the case is whether or not the statute concerning the sale and transfer of motor vehicles was complied with at the time of the sale of the GMC truck to defendant. This statute provides that unless at the time of the delivery of a motor vehicle there shall pass between the parties a certificate of ownership with an assignment thereof the sale "shall be fraudulent and void." See Laws 1927, p. 313. It is well settled that unless the certificate is assigned and passes to the buyer of the motor vehicle at the time of its delivery the sale is absolutely void and no title to the vehicle passes. State ex rel. v. Cox, 306 Mo. 537, 268 S. W. 87, 37 A. L. R. 1456; Sullivan v. Gault (Mo. App.) 299 S. W. 1116; Mathes v. Westchester Fire Ins. Co. (Mo. App.) 6 S.W.(2d) 66.

It is the contention of the plaintiff that the undisputed testimony shows that the sale was completed in St. Joseph on August 2nd; that at that time the certificate of title duly assigned was delivered by plaintiff to defendant. Defendant contends that the undisputed testimony tends to show that the sale and delivery of the truck was had at Fairfax on the evening of July 24th, 1928, and, it being admitted that the certificate of title was not delivered until August 2nd, the statute was not complied with. Therefore, it is claimed that the settlement of the first replevin suit having grown out of the prior illegal contract and mortgage and this illegal contract and mortgage, being the foundation of the first replevin suit out of which the contract of settlement grew, there was no valid consideration for the latter and the chattel mortgage, upon which this suit is based, is void and plaintiff cannot maintain the action.

The only witnesses who testified in this case were plaintiff and defendant. Plaintiff was the first witness in the case. Upon his cross-examination he testified that he could not state specifically when the sale took place without consulting his record, but when asked if it did not take place on July 24th, 1928, he answered, "possibly at that time, yes sir"; that he did not remember whether the delivery of the GMC truck took place at Fairfax or St. Joseph. When asked whether, at the time he delivered the truck, he took back the first chattel mortgage he answered, "I presume so, I usually do." He further testified that he did not remember whether the certificate of title was delivered to defendant on the second day of August or after that time; that his bookkeeper delivered such certificates of title; that he supposed that she delivered the certificate to the defendant in this instance and that he, personally did not know whether it was so delivered.

Plaintiff was recalled in rebuttal and testified that the first note and chattel mortgage was drawn up in his office in St. Joseph on July 24th, 1928; that at that time "we entered into the agreement * * * and delivery (of the truck) was supposed to have been made then, but was not"; that the true date of the delivery was not stated in the mortgage when the actual transfer of the truck was made "because it would be necessary to draw an entirely new instrument"; that the truck was delivered to the defendant on August 2nd and the mortgage was recorded in Rockport on August 3rd. Rockport is the county seat of the county in which Fairfax is situated. He further testified that the certificate of title was assigned to defendant on August 2nd. He was asked on cross-examination whether he had not testified on his original cross-examination that he did not know whether the certificate of title passed for the truck at the time of its delivery and he answered, "I told you I didn't have definite knowledge" and that I "possibly" said that I "didn't know"; that he obtained the definite knowledge that he testified to on rebuttal "from the certified records" produced by the defendant.

Defendant testified that he purchased the truck in controversy on July 24th, 1928; that a representative of plaintiff brought the truck to Fairfax and "the papers were made out in Fairfax * * * about eleven o'clock * * * at night"; that plaintiff was not present at the time; that at this time the first chattel mortgage was executed by him and the truck delivered to him; that the certificate of title was not delivered to him at that time but "around the first of August." On cross-examination he testified that he thought plaintiff's salesman was in Fairfax talking to him about the sale of the truck "a time or two"; that after the salesman came to see him the witness went to St. Joseph where "we made the agreement"; that the "deal" was closed up at St. Joseph. He was then asked:

"Q. When you closed up the deal Mr. Isaacson said, `I have to take care of the transfer of your license tags and your new certificate of title,' and he had you sign certain papers there? A. I signed papers at Fairfax.

"Q. That was before you came down here and closed up the deal? A. It was the night he delivered the truck.

"Q. Mr. Isaacson's salesman came up to Fairfax to see you about selling you this truck? A. I think he was up there a time or two.

"Q. He finally had you sign this chattel mortgage and note up there at Fairfax, didn't he? A. He brought the truck up.

"Q. Then he told you that you had to go to St. Joseph and finish signing the papers, didn't he? A. Not that I remember of."

Plaintiff insists that the evidence shows without dispute, and by the admission of defendant himself, that negotiations for the sale of the GMC truck in 1928 were carried on over a period of several days; that they commenced when the first chattel mortgage and note were drawn up by plaintiff in his office in St. Joseph on the date that they bore, that is, July 24th, 1928; that thereafter further negotiations for the sale were had at Fairfax, the home of defendant, and finally, on August 2nd, defendant came to St. Joseph where the sale was completed. The contract of settlement was in writing and was dated August 9th, 1928. It recites that the GMC truck was sold to defendant on July 24th, 1928. This is strong evidence, though not conclusive, that this was the day of the sale.

It is claimed that defendant upon cross-examination admitted that the sale of the truck was completed in St. Joseph on August 2nd. We do not think that his testimony on cross-examination conclusively shows any such admission. On cross-examination he still maintained that the papers were signed and the truck delivered to him at Fairfax. He did say that the agreement was made and the "deal" closed in St. Joseph. No explanation of what the witness meant when he said that the agreement was made and the "deal" closed was attempted to be elicited. Taking all of his testimony together the jury could well say that what he meant was that the negotiations culminated in an agreement in St. Joseph between him and the plaintiff upon the terms of the sale of the truck and thereafter he signed the papers and the truck was delivered to him at Fairfax. The jury was not compelled to find that the witness meant that the papers were signed and the truck delivered to him at Fairfax and thereafter the deal was closed up in St. Joseph, as the construction plaintiff puts upon defendant's testimony on cross-examination would necessarily lead. Of course, if the papers were signed and the truck delivered at Fairfax then the deal was there made and closed up and there was nothing further to be done in St. Joseph. The jury could well say that what defendant meant, when he said that the agreement was made in St. Joseph and the deal closed up there, was that the terms of...