Matthews v. Truxan Parts, Inc.
| Decision Date | 11 July 1959 |
| Docket Number | No. 7761,7761 |
| Parties | Lawrence MATTHEWS, Plaintiff-Respondent, v. TRUXAN PARTS, INC., a Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John H. Fairman, Wm. P. Sanford, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for appellant.
Farrington & Curtis, E. C. Curtis, Springfield, for respondent.
This action was brought in the Circuit Court of Greene County, Missouri, for rescission of a contract of purchase of a motor vehicle trailer and recovery of the purchase price of $1,150 and interest. The cause was tried by the court without a jury and judgment rendered for plaintiff for $1,150, the amount of the purchase price and interest in the amount of $166.75. Defendant appealed.
Plaintiff's petition in substance alleged that defendant represented to plaintiff that it was the owner of a B & J semi-trailer and offered to sell same to plaintiff; that relying upon said representations plaintiff agreed to and did purchase said trailer from defendant for the sum of $1,150 and that the purchase price has been duly paid by plaintiff; that though often requested the defendant failed and neglected to deliver a certificate of title and still fails and refuses to do so; that possession of said trailer was taken in a replevin action from plaintiff by one, Gale Cummings, who holds the certificate of title, so that plaintiff is unable to tender the possession back to defendant; that plaintiff tenders to defendant the defense of the replevin action and tenders and assigns to defendant all right, title and interest or claim he may have, in and to said trailer or judgment rendered in the replevin action and prays that the contract of purchase be cancelled and rescinded and for judgment against defendant for the sum of $1,150 with interest from the ___ day of July, 1956, and costs.
Defendant's first amended answer denies that it sold plaintiff the trailer in question, and denies that it ever owned or had any interest therein, and denies that it received and retained the purchase price of the trailer from the plaintiff as its own.
The answer states that the possession of the trailer in question was delivered to plaintiff and Herbert E. Matthews under a lease agreement with option to buy December 2, 1955, and remained in their possession until it was replevied under an action brought by Gale Cummings on the ___ day of July, 1956; that on December 24, 1955, while plaintiff and Herbert E. Matthews were in possession of said trailer, Herbert E. Matthews signed a purchase order for a '1950 White Truck' from defendant and at that time defendant agreed to finance the purchase of said trailer if purchased by Herbert E. Matthews under the lease agreement with Gale Cummings.
That on January 3, 1956, Herbert E. Matthews and Lawrence Matthews executed their joint note to Missouri White Motors, Inc., in payment of the white truck and for payment due Gale Cummings for the trailer purchased from him, and, secured said note by chattel mortgage on the '1950 White Truck' and a 1949 Hobbs trailer represented to defendant as the trailer purchased from Gale Cummings; that pursuant to said representation defendant did on January 3, 1956, and January 5, 1956, pay to Gale Cummings the amount due him on the sale of the trailer to Matthews; that Gale Cummings accepted the check payable to him with endorsement thereon 'Bal. on Matthews trailer'.
The answer denied any failure on the part of defendant to deliver to plaintiff a proper certificate of title and alleged that any failure to receive a proper certificate of title was due to plaintiff's neglect, laches and wrongdoing, and that of Gale Cummings. The answer further alleged that after the defendant made the loan to Herbert E. Matthews and plaintiff, relying upon their representations that they had purchased the trailer from Gale Cummings on January 17, 1956, Gale Cummings secured and caused to be assigned to the Missouri White Motors, Inc., a certificate of title to the 1949 Hobbs trailer representing the title to be to the trailer purchased by Herbert E. Matthews and plaintiff and the title to the Hobbs trailer included in the chattel mortgage, given by the Matthews, to secure the note executed January 3, 1956. That simultaneously therewith defendant reassigned to plaintiff said title and defendant acquired no interest in the trailer other than security for the loan; that plaintiff procured a new title to the Hobbs trailer and had same issued in his name; that said trailer has never been in defendant's possession; that it had no opportunity to check the title thereto and that it was the duty of plaintiff to determine whether or not the title so issued in his name was the true certificate of title to trailer so purchased and mortgaged to defendant; that it was plaintiff's duty to take prompt and immediate steps to protect his interest and defendant's security for the monies paid by defendant to Cummings for plaintiff; that plaintiff's continued use and possession of the trailer and certificate of title for approximately six months constitutes waiver and estoppel of plaintiff's action. The answer admits the alleged replevin suit brought by Gale Cummings to recover possession of the trailer in question and that Gale Cummings claims to hold the true certificate of title to the trailer and the right to possession. It pleads that in plaintiff's answer in the replevin action he alleged that he was the owner of said trailer and entitled to possession thereof; that the pendency of said action does not constitute legal grounds for alleged rescission as to defendant and denies that plaintiff can rescind without joinder of Herbert E. Matthews, he being a joint purchaser and party to the alleged agreement.
The answer further alleged that plaintiff is engaged in construction work on Table Rock Dam; that the trailer delivered to him by Gale Cummings on ___ day of December, 1955, up until the day it was replevied, ___ day of July, 1956, was used by plaintiff in his employment and that he received the profits thereon, to-wit, the reasonable rental value of $100 per month; that to allow full recovery of the purchase price would permit plaintiff to retain the profits from the use of said trailer and would constitute unjust enrichment.
The answer further alleged that defendant rented a used trailer to plaintiff for a period of three months at an agreed value of $100 per month on ___ day of October, 1956; that said rent has not been paid and prays judgment for $300 for the rental value thereof.
The prayer in the answer is that plaintiff's action be dismissed and that defendant recover a judgment for $300 rental value of its trailer.
We here state from the record the evidence offered relative to the issues presented: In December, 1955, and January, 1956, John McDaris was President of defendant-company, then known as Missouri White Motors, Inc. Plaintiff, who was then nineteen years of age, accompanied by his father, Herbert E. Matthews, went to the office of defendant, December 24, 1955, to talk to John E. McDaris about buying a tractor and trailer. Prior to that date, plaintiff had obtained possession of a trailer from Gale Cummings under a lease purchase agreement. By the terms of this agreement, plaintiff was to pay Cummings $100 per month rental with option to buy the trailer at a price of $1250, in which even the rental payments were to be applied on the purchase price and plaintiff paid Cummings $100 on this agreement. Cummings was not a dealer in the trailer business but did own a number of trailers, including the one delivered to plaintiff.
At the meeting with John McDaris on December 24, 1955, plaintiff agreed to buy a tractor from defendant at a price of $1,300. H. E. Matthews gave this testimony: 'Lawrence told John McDaris that the tractor done the work, that he was satisfied with it, that he would buy it, but he wanted a paint job on it. Johnny said, 'For $100.00 more, I will put a paint job on it.' And he--the agreed price between the two of them was $1300.00, altogether. It was $1200.90 for the tractor, $100.00 for the paint job. Johnny said, 'I will give you a loaner to take back and use while I am painting this one.'
'Q. Now, was there anything said at that time about this trailer? A. And Lawrence told him, Lawrence said to Johnny, he says, 'I paid this $100.00, and there would be $1150.00 more to pay, at $100.00 a month'. He says,
Present at the time of this conversation were John McDaris, his wife, Mary the plaintiff and plaintiff's father. At date of trial both John and Mary McDaris were deceased.
On January 17, 1956, plaintiff and his father returned to defendant's office, and at that time McDaris told plaintiff he had bought the trailer and had the title.
Herbert E. Matthews gave this testimony:
'Q. Tell the Court what that discussion was. A. Johnny says, .
...
To continue reading
Request your trial
-
Greer v. Zurich Ins. Co.
... ... Young Enterprises, Inc., also a used car dealer of Springfield, the Zurich policy was issued to ... Dude Hinton Pontiac, Inc., Mo.App., 332 S.W.2d 467, 469(2); Matthews v. Truxan Parts, Inc., Mo.App., 327 S.W.2d 28, 36(5, 6); Haynes v. Linder, ... ...
-
Breece v. Jett, 37824
...cause of action and recover upon another. He can recover only on the cause of action asserted in the petition. Matthews v. Truxan Parts, Inc., 327 S.W.2d 28, 35-36 (Mo.App.1959); Cf. Duncan's Adm'r. v. Fisher, 18 Mo. 403, 405 (1853). Instruction No. 7 intermingles items which are properly r......
-
Hymer v. Dude Hinton Pontiac, Inc.
...S.W.2d loc. cit. 609(7) and cases cited in footnote 10; Albright v. Uhlig, Mo.App., 315 S.W.2d 471, 475(6); Matthews v. Truxan Parts, Inc., Mo.App., 327 S.W.2d 28, 36(6), 39(16). These are essential elements of any action at law, such as the case at bar [Winscott v. Frazier, Mo.App., 236 S.......
-
Masterson v. Plummer, 7865
...Mo.App., 210 S.W.2d 1011, 1015(4); Cape Girardeau School Dist. No. 63 v. Frye, Mo.App., 225 S.W.2d 484, 489(6); Matthews v. Truxan Parts, Inc., Mo.App., 327 S.W.2d 28, 38(11). Rather, defendant Plummer has advanced, both in the trial court and on this appeal, only one reason in support of h......