Lange v. Midwest Motor Securities Co.

• Decision Date: 23 May 1921
• Docket Number: No. 13891.,13891.
• Parties: LANGE v. MIDWEST MOTOR SECURITIES CO.
• Court: Missouri Court of Appeals

231 S.W. 272

LANGE v. MIDWEST MOTOR SECURITIES CO.

No. 13891.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Margaret M. Lange against the Midwest Motor Securities Company. Judgment for plaintiff, and defendant appeals. Reversed.

Thomson & Brasher, of Kansas City, for appellant.

J. W. Hawes, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff brought suit for $1,500 actual and $5,000 punitive damages for the conversion of an automobile. There was a verdict and judgment in her favor for $1,250 actual and $250 punitive damages, and from this defendant appealed.

It is conceded that at the time of the taking of the automobile the defendant held a chattel mortgage thereon, given by plaintiff in part payment of the purchase price thereof. Said note was for $1,000, payable in monthly installments of $75, due on the first of every month, beginning October 1, 1917, with interest at 8 per cent, on each installment, and to continue every month up to and including August 1, 1918, and on September 1, 1918, a final installment of $175 was to be paid with interest. The interest on each installment and the interest on the unpaid balance of the principal sum were to be paid at the maturity of each installment, and in case of default in the payment of any installment when due then all remaining installments should immediately become due and payable; and there was provision for the payment of a reasonable attorney's fee in case of default. The mortgage provided that the automobile should remain in the possession of the mortgagor until default be made in the payment of the said debt or interest, or some part thereof, but in case of a removal or attempted removal of said automobile from Jackson county, Mo., or any unreasonable depreciation in the value thereof, or in case the mortgagee should deem itself insecure, it could take said property into its possession. There was the usual further provision for a sale under the chattel mortgage, upon the mortgagee's taking possession of the property, either in case of default or as above provided, and there was also a provision in which the mortgagor agreed to exonerate the mortgagee, and hold it harmless from all damages or trespass in entering any premises where the property could be found, and in the taking possession of the same.

Plaintiff made the monthly payments from October, 1917, to April, 1918, both inclusive, but never paid any of them on the first of the month, the payments ranging from the 9th to as late as the 21st of the month on the first day of which they respectively fell due; but it seems that up to and including the one of April 1, they were accepted and credited on said note on the dates they were paid, and there is an admission on the part of defendant in the record that "all the rest of everything was paid up to the 1st day of May" though the defendant repeatedly urged plaintiff to make the payments promptly.

The trouble began with regard to the installment due on May 1, 1918. Plaintiff concedes that she did not pay it on that date, and she made no attempt to make such payment until on May 16, 1918, when she, through her husband, acting as her agent, mailed defendant a check for $77.22, together with a letter telling defendant to "kindly hold check till Saturday," which condition postponed the cashing of the check till May 18th. Plaintiff says she doesn't know why her husband wrote such a condition, as she gave him no authority to that, but clearly, as the husband was concededly her agent, and the defendant had no means of knowing that the condition was unauthorized, she cannot invoke lack of authority on the part of her agent in the transaction with defendant.

The automobile in question was taken by defendant about 9 o'clock in the evening of May 17, 1918. Plaintiff, in order to leave Kansas City for a trip to Omaha, and then to Minnesota, had her husband to drive her in the automobile from her residence in the city to the union depot, where she took a train and went away on that trip. While her husband was in the depot seeing his wife off on the train, he left the car parked outside, and defendant's representatives took charge of it, and after explaining to a policeman that they were taking it under the chattel mortgage, drove off with it to the police station, where the matter was again explained to the policeman's superiors and, their approval being obtained, the car was placed by defendant in a garage. When the husband, after having seen his wife off, returned to the place where he had parked the car, he found it was gone.

Plaintiff's check for $77.22 was, as stated, mailed to defendant on May 16, 1918, but at that time defendant had already placed the note in the hands of its attorneys. And in the afternoon of that date, said attorneys mailed a letter, having a special delivery stamp on it, to plaintiff, telling her they had the note, an installment of which fell due on May 1, 1918; that the interest to May 17 was $6.86, making a total of $81.86; that the note and mortgage provided that, in the event of default in the payment of any installment when due, and the matter was placed in the hands of an attorney, the latter's fee should also be paid; that since the dictation of the foregoing portion of the letter, their client (the defendant) had handed them the check plaintiff had sent defendant with instructions to hold it until Saturday next; that the cheek could not be accepted under those conditions; that the attorney's :fee would be $10, provided the matter was adjusted by not later than 10 o'clock the next morning by the payment in cash at their office of the amount due to that date, making a total of $91.86; that if they did not have a remittance of that amount by 10 o'clock Friday morning May 17, 1918, they would place a writ in the sheriff's hands, and take the car.

It is not precisely clear what was done with the check plaintiff sent on May 16, 1918. There is some intimation in the record that it was returned to plaintiff, and did not appear again until it was produced at the taking of plaintiff's deposition. There is no question, however, that it was never cashed or sought to be cashed by defendant. And it is conceded that, aside from sending the check on the condition named, no attempt was ever made to pay the installment due May 1, 1918, nor was there any offer on the part of plaintiff to do so, then or at any time thereafter.

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