Ivester v. E. B. Jones Motor Co., 29830

• Court: Court of Appeal of Missouri (US)
• Citation: 311 S.W.2d 109
• Docket Number: No. 29830,29830
• Parties: Vernon L. IVESTER and Madelyn E. Ivester, (Plaintiffs) Respondents, v. E. B. JONES MOTOR COMPANY, a Corporation, (Defendant) Appellant.
• Decision Date: 04 March 1958

Page 109

311 S.W.2d 109 Vernon L. IVESTER and Madelyn E. Ivester, (Plaintiffs) Respondents,
v.
E. B. JONES MOTOR COMPANY, a Corporation, (Defendant) Appellant. No. 29830. St. Louis Court of Appeals, Missouri. March 4, 1958.
Motion for Rehearing or for Transfer to Supreme Court Denied
April 4, 1958.

Page 110

Lowenhaupt, Mattingly, Chasnoff, Freeman & Holland, Richard D. Fitzgibbon, Jr., St. Louis, for appellant.

Dubinsky & Duggan, Sidney W. Horwitz, St. Louis, for respondents.

WOLFE, Commissioner.

This is an action to recover damages arising out of a breach of warranty of title to an automobile. The automobile was purchased by the plaintiffs from the defendant. It was later the subject of a replevin suit against the plaintiffs by a third party who asserted ownership of and title to the car. The third party obained possession and plaintiffs then brought this suit against E. B. Jones Motor Company, from which they had purchased the automobile. There was a verdict and judgment in favor of the plaintiffs in the sum of $2,396 and the defendant prosecutes this appeal.

The facts of the matter are that Vernon L. Ivester and Madelyn E. Ivester, the plaintiffs, are husband and wife, and in March of 1950 they desired to buy a car. At that time there was in operation a company known as E. B. Jones Used Car Arena Inc., which has since merged with the E. B. Jones Motor Company, the defendant. Reference to the defendant therefor includes the company with which it was merged. The plaintiffs went to a used car lot operated by the defendant and there selected a 1949 Ford. They agreed to purchase it for a total price of $1,936. They paid the defendant $100 cash and traded in on the purchase a 1940 Studebaker sedan for which the defendant allowed them $300. This left a balance of $1,536 due the defendant and the plaintiffs executed a note for this sum secured by a chattel mortgage on the Ford and payable in twenty-four monthly installments of $64 each. The Jones Company told the plaintiffs that it had purchased the car from a man named Hugh F. Keepers, who had an Ohio title to it. The Jones Company filled out the necessary papers for a transfer of title to the plaintiffs. The plaintiffs then made the transfer through the Missouri Department of Motor Vehicle Registration and secured a Missouri title to the Ford.

The note was paid off in due time and thereafter around the last of July, 1953, an agent for the Federal Bureau of Investigation called upon the plaintiffs to question them about the car. Ivester then got in touch with the Jones Company and told it that his title to the car had been questioned. He took the agent for the Federal Bureau of Investigation to the company and was present with him when he talked to the sales manager. The company did nothing about the matter despite numerous calls by Ivester.

The Ford remained in the possession of plaintiffs until September of 1953, when a replevin suit was filed by Rent-A-Car Service, Inc., a Texas corporation, which claimed ownership of and title to the car. The car was taken by the sheriff of the City of St. Louis and turned over to Rent-A-Car Service, Inc. When this occurred the...