Kesinger v. Burtrum

• Decision Date: 17 August 1956
• Docket Number: No. 7458,7458
• Citation: 295 S.W.2d 605
• Parties: Nora KESINGER, Plaintiff-Respondent, v. Joe BURTRUM, d/b/a Burtrum Brothers Motor Company, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 605

295 S.W.2d 605

Nora KESINGER, Plaintiff-Respondent, v.Joe BURTRUM, d/b/a Burtrum Brothers Motor CompanyDefendant-Appellant.

No. 7458.

Springfield Court of Appeals, Missouri.

Aug. 17, 1956.

Coyne & Patten, Joplin, for defendant-appellant.

Dalton DeShazer, Joplin, for plaintiff-respondent.

STONE, Judge.

In her petition filed herein on September 17, 1953, plaintiff alleged that, on or about February 25, 1951, she had purchased from defendant, a used car dealer at Joplin, Missouri, a 1948 Ford tudor automobile, motor number A2298212, for $1,180; that she had delivered to defendant'as a down payment' a used automobile of the value of $400 and had executed a promissory note for $780, on which $604.08 had been paid; that, although demanded by plaintiff'on numerous occasions,'defendant had failed and refused to deliver to plaintiff a certificate of title to the 1948 Ford automobile purchased by her; and that, on or about September 14, 1953, plaintiff had tendered said Ford automobile back to defendant and had 'demanded that defendant return to her the amount paid on said purchase price,' which defendant refused to do.The prayer of plaintiff's petition was for a money judgment of $1,004.08 and for costs.Defendant's answer was a general denial.The evidence adduced upon trial by the court, a jury having been waived, fully justified and amply supports the findings of the able trial judge that:

'* * * at the time of purchase plaintiff was delivered a certificate of title to the Ford, bearing (motor)No. 2249724.She made application for a new title, was given a receipt by the licensing clerk (at the State License Bureau), and received a car license.The new title was not returned to her, but evidently was sent to defendant who held the mortgage.In the early part of September, 1953, plaintiff endeavored to trade the Ford to Stanley Motors for a new car.An attempt was made to procure the title from defendant.It was not forthcoming.It later developed that the title delivered to plaintiff bore the wrong (motor) number.It should have been No. 2298212, which was the number on the motor.* * * There is no evidence that defendant acted in bad faith in delivering the wrong title, but on the contrary he delivered the same title he had received.The mistake was made by some prior owner or dealer.Plaintiff had the use of the Ford from date of purchase, February 25, 1951, until September 15, 1953, when her husband returned the car to the defendant, shortly after she discovered her title was not good, or for a period of two years, six months and twenty-five days.After that date (about October 7, 1953)defendant procured a corrected title which plaintiff then refused to accept.'

After noting that 'plaintiff demands the full amount paid by her, to-wit, $604.08 cash and $400 value placed on the 1941 Chevrolet which she traded in,' the trial judge expressed the opinion that 'under the peculiar circumstances of this caseplaintiff should be charged with the use of the Ford car unmolested for a period of over two and one-half years'; and, observing that 'certainly the value of the use of the car should at least equal the depreciation,'the court entered judgment for plaintiff in the sum of $574.08, arriving at that figure by deducting the unpaid balance of $175.92 on plaintiff's purchase money note, secured by chattel mortgage on the Ford, from the valuation of $750 which plaintiff placed on the Ford as of September 14, 1953, when it was returned to defendant.

On this appeal by defendant, it would seem to be 'of primary importance to determine what sort of action is sought to be maintained.'United States Fidelity & Guaranty Co. v. Mississippi Valley Trust Co., Mo.App., 153 S.W.2d 752, 757;Young v. Hall, Mo.App., 280 S.W.2d 679, 681.For that purpose, we turn first to plaintiff's petition, because, as under prior codes, ¹'the pleadings continue to be of the greatest utility in defining the issues of a case' tried under our present code, ² and '(t)he form of the action is determined by the substance of the petition.'³Even though our courts have on several occasions 'loosely stated the prayer is no part of the petition'--a thought 'more accurately expressed by saying the relief prayed for is no part of plaintiff's cause of action'[Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24, 26(2, 3)]--it is clear that, 'in determining the cause of action intended to be pleaded under the new code, we may consider the facts pleaded and relief sought.'Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 688(4).And, although Section 506.040⁴ provides that '(t)here shall be one form of action to be known as 'civil action," all distinctions between actions at law and in equity are not thereby eliminated.Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473, 475(2).Considering the petition in the instant case with the foregoing in mind, we have no doubt but that plaintiff thereby undertook to state an action at law for recovery of the purchase price of the Ford, ⁵ for which there could have been no foundation unless adequate restitution theretofore had been made or tendered, ⁶ as distinguished from an action in equity for a rescission, in which it is sufficient to plead a willingness to make appropriate restitution.⁷

Unless a certificate of title, correctly describing the motor vehicle sold, ⁸ is assigned and delivered to the buyer, the attempted sale of any motor vehicle registered under the laws of this state is fraudulent and void and no title passes.⁹This is true, not because of any judicial reasoning, but because the absolute and mandatory provisions of Section 301.210(4) plainly so state.Robinson v. Poole, Mo.App., 232 S.W.2d 807, 811.However, since an attempted contract within the statutory prohibition implies no moral turpitude and thus is simply malum prohibitum rather than malum in se [Boyer v. Garner, Mo.App., 15 S.W.2d 893], it has been recognized in numerous Missouri cases that, so long as the contract of sale remains executory, i. e., before assignment and delivery of a proper certificate of title [Winscott v. Frazier, Mo.App., 236 S.W.2d 382, 383], the buyer may repudiate the contract and may recover what he has paid, provided he acts within a reasonable time and returns, or offers to return, the motor vehicle in substantially as good condition as it was when he received it.¹⁰Strictly speaking, an action by the buyer of a motor vehicle to recover what he has paid under a void contract of sale does not involve rescission or the rules relating thereto, for rescission contemplates a voidable but existing contract.Schroeder v. Zykan, Mo.App., 255 S.W.2d 105, 111(8), and cases there cited.However, our appellate courts frequently have referred, interchangeable and indiscriminately, to rescission as well as repudiation of a void contract of sale for a motor vehicle, ¹¹ perhaps by reason of the fact that, to recover the purchase price paid under such void contract, the buyer 'must perform the same acts which in the case of a voidable contract would amount to a rescission.'Schroeder v. Zykan, supra, 255 S.W.2d loc. cit. 112.

Of course, the requirement (as stated in many of the cases) that a buyer act within a reasonable time, as a condition precedent to recovery of money paid under a void contract of sale for a motor vehicle, means within a reasonable time after he discovers, or in the exercise of ordinary care should discover, the ground for repudiation of the contract; ¹² and whether, in any given case, the buyer's action has been timely remains a question of fact so long as fair-minded men reasonably might differ about it.¹³In the instant case, the 1948 Ford tudor purchased by plaintiff from defendant on February 25, 1951, was described correctly in the certificate of title excepting only as to motor number, and plaintiff apparently did not learn of that misdescription until she undertook to trade the Ford about two weeks before she tendered it to defendant.Where, as here, there is no circumstance fairly calculated to arouse suspicion or to excite the zetetic impulse in an ordinarily prudent person, we are unwilling to impose upon the buyer of a motor vehicle the inflexible duty, as a matter of law, of searching out the motor number on the vehicle (in itself an aggravating and perplexing task to one not schooled in such matters) and comparing it with the motor number on the certificate of title to make sure that there is no discrepancy between the two.On the record presented to us, we think that whether plaintiff's discovery of the misdescription as to motor number on the certificate of title and her attempted repudiation of the contract of sale were timely were questions for determination by the trier of the fact, in this instance the court sitting as a jury, and we are not inclined to disagree with the findings inherent in the judgment that plaintiff's action was seasonable.Section 510.310(2);Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 786(3), and cases there cited.

However, as we have noted, the right of the buyer to repudiate a void contract of sale for a motor vehicle and to recover what he has paid therefor is conditioned not only upon action within a reasonable time but also upon return or tender of the vehicle in substantially as good condition as it was when he received it.This latter condition simply carries over into the field of repudiation of void contracts of sale for motor vehicles 'the first and prime essential of rescission' which is said to be 'restitutio in integrum'[Black on Rescission and Cancellation, Vol. 2, Section 616, p. 1414] or restoration of the status quo ante, ¹⁴ a requirement predicated on the equitable maxim that 'he who seeks equity must do equity'[Ebel v. Roller, Mo.App., 21 S.W.2d 214, 216(2, 3);Ballantine v. Ferretti, Sup., 28 N.Y.S.2d 668, 683(8);Felt v. Bell, 205 Ill. 213, 68 N.E. 794, 799] and embodied in the Uniform Sales Act¹⁵ as a...