Mallory Motor Co. v. Overall
| Decision Date | 02 May 1955 |
| Docket Number | No. 22190,22190 |
| Citation | 279 S.W.2d 532 |
| Parties | MALLORY MOTOR COMPANY, a Corporation, Respondent, v. George M. OVERALL et al., Appellant. |
| Court | Missouri Court of Appeals |
Ben W. Swofford, Robert A. Schroeder, John C. Milholland, Swofford, Schroeder & Shankland, Kansas City, for appellant.
James Daleo, Kansas City, for respondent.
This is an action upon two checks, the face amount of each being $2,185, or a total of $4,370. At the conclusion of plaintiff's evidence, both parties moved for a directed verdict. The trial court directed a verdict for plaintiff for the amount of the checks, together with interest. Defendant, George M. Overall, has appealed.
Plaintiff's petition named George M. Overall, William F. Becklew and Bernadine Owen as defendants, alleging that they were partners doing business as the Mo-Kan Auto Sales. It being admitted that defendant Overall was the sole owner of the Mo-Kan Auto Sales, the trial court directed a verdict in favor of defendant Becklew, and plaintiff dismissed as to defendant Owen.
Plaintiff Mallory Motor Company, is the successor of the Oakley Motor Company of St. Louis, Missouri.
The facts are not in dispute. Defendant Overall is a dealer in automobiles in Kansas City, Missouri. On August 23, 1949, he called Mr. Robert Sanders of the Oakley Motor Company on the telephone and agreed to purchase from the Oakley Company two 1949 Mercury automobiles. Following the telephone conversation, Overall made out the two checks sued on. It is admitted that they are in his handwriting. They are dated August 24, 1949, are drawn on the City National Bank & Trust Company, at Kansas City, Missouri, payable to the Oakley Motor Company, each in the amount of $2,185. On the back of each check defendant Overall wrote: 'Full payment 49 Mercury 2 Dr. Mtr No. 9 C M_____ Title papers attached.'
On August 23, 1949, defendant delivered the two checks to his agent, Leonard Stice. That night Stice took the train for St. Louis. The next day he appeared in the office of the Oakley Company. Stice inspected the two cars, and took their motor numbers. He then wrote on the back of the two checks in the blank spaces after '9 C M,' the following: On one check, '252489 Blue,' on the other, '230967 Green.'
In the telephone conversation between defendant and Sanders (representative of the Oakley Company) it was understood that both cars were to be equipped with white sidewall tires. Upon inspection, Stice found that one of the cars did not have those tires. By reason of that fact an adjustment was made. The Oakley Company issued its check in the amount of $15, payable to the Mo-Kan Auto Sales and delivered the same to Stice.
Bills of sale covering the two cars were executed by the Oakley Company. One shows the automobile described therein was 'Sold to Bernadine Cooper', the other to 'Georgia Barton.' This was done at defendant's request. Bernadine Cooper (Owen) was his bookkeeper and Georgia Barton was a 'girl friend' of the bookkeeper. Defendant's counsel at the trial admitted 'this was his (defendant's) deal, and his, entirely.'
Stice delivered the two checks sued on to the Oakley Company. The latter in turn delivered possession of the two cars to Stice. He fastened the cars together and started to drive them to Kansas City. When he got within a few miles of his destination he ran the cars off the highway into a ditch and wrecked them.
On August 25, 1949, defendant notified the bank upon which the checks were drawn to dishonor them. The bank complied with his request and thus the basis for this suit was laid.
Defendant's first contention is that the court erred in not directing a verdict for him at the close of plaintiff's evidence, his claim being that he 'never acquired any title to the automobiles.'
It is apparent that defendant recognizes that: 'It is a well-settled rule that the loss of goods destroyed by accident falls upon him who at the time holds the title.' Turner Looker Co. v. Hindman, 298 Mo. 61, 66, 250 S.W. 388, 389.
In the instant case, not only was possession of the cars delivered to defendant's agent, Stice, but bills of sale covering them were executed by the Oakley Company, plaintiff's predecessor.
It was early held in this State that: Gatzweiler v. Morgner, 51 Mo. 47, 49. See also W. W. Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 581, 592 and Poplin v. Brown, 200 Mo.App. 255, 265, 205 S.W. 411.
Under the common law, no present delivery was essential to the passing of title in the sale of a chattel. As said in the case of Wheless v. Meyer-Schmidt Grocer Co., 140 Mo.App. 572, 585, 120 S.W. 708, 712: To the same effect is the holding in Estis v. Harnden, 153 Mo.App. 381, 385, 134 S.W. 43 (citing cases).
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