Muzenich v. McCain

• Decision Date: 29 June 1925
• Docket Number: No. 14919.,14919.
• Citation: 274 S.W. 888
• Parties: MUZENICH v. McCAIN.
• Court: Missouri Court of Appeals

274 S.W. 888

MUZENICH v. McCAIN.

No. 14919.

Kansas City Court of Appeals. Missouri.

June 29, 1925.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

Suit by Matt Muzenich against Harry McCain. Judgment for plaintiff. From order sustaining defendant's motion for new trial and in arrest of judgment, plaintiff appeals. Affirmed.

Gossett, Ellis, Dietrich & Tyler, of Kansas City, for appellant.

Roland Hughes and H. S. Julian, both of Kansas City, for respondent.

BLAND, J.

This is a suit to replevy an automobile truck. The jury found for plaintiff; that the value of the truck "at the time it came into possession of the defendant was $2,500, and that the damages for injuries to said truck is $1,000, and that the damages for taking and detention of the same is $350," etc. A judgment was entered in accordance with the verdict, but plaintiff remitted all of the judgment, except the sum of $2,500, the value of the truck as found by the jury. Thereafter the court sustained defendant's motions for a new trial and in arrest of judgment "because of error in instructing the jury to find the value of the truck at the time the same came in possession of the defendant," and plaintiff has appealed.

The facts show that plaintiff, who lived in Kansas City, Kan., in the fall of 1920 purchased the truck in question, and some time thereafter entered into an agreement with one McCormick in that state, agreeing to sell the truck for the sum of $3,000. Plaintiff agreed to take McCormick's note for the $3,000 secured by the latter's note for $8,000 purporting to be signed by Henry Treece and secured by deed of trust on certain lands in Texas. Plaintiff stated to McCormick that he would investigate the security, and the latter said, "You let me have the truck, and you can find out by the time the contract calls for whether the note is good or not." The truck was delivered to McCormick, but the arrangement was that McCormick was not to become the owner of the truck until plaintiff could discover whether the note and deed of trust were valid.

Plaintiff testified that he did not sign a bill of sale; that the license was not transferred, and was not to be transferred until the security was discovered to be valid. Plaintiff made an investigation as to the security, and found that the deed of trust was worthless. Plaintiff thereupon made a search for the truck, and, after the expiration of about a month, located it in the hands of the defendant. At that time it had a license attached to it belonging to another car. One Salmon testified that he purchased the truck from McCormick in Kansas City, Mo., for defendant, and at the time of the purchase of the truck "he did not sign any documents which were sent to the secretary of state of Missouri, nor to any officer anywhere." Plaintiff testified that he paid $3,764 cash for the truck, and that he drove it for about three months before he sold it; that the truck at the time it was sold by plaintiff was worth $3,000. Defendant testified that "he did not at the time of the purchase of the truck or afterwards sign any papers which were transmitted to the secretary of state of Missouri or to any officer elsewhere." There was evidence on the part of defendant that the truck was worth from $2,500 to $3,000 at the time of the trial, but that it would not bring over $2,000. McCormick brought the truck to Missouri where he was residing, and it was driven on the streets of Kansas City before it was sold by him.

The contract of sale between plaintiff and McCormick was not recorded, and defendant insists that it comes within the conditional sales statute. Section 2284, It. S. 1919. There was a great deal of testimony introduced by plaintiff in an effort to show that Salmon and defendant were not purchasers in good faith, and plaintiff in his brief argues at length that the facts elicited at the trial so show. However, in plaintiff's instruction No. 10, of which defendant complains, the court told the jury that, if the transaction between plaintiff and McCormick "was not a sale, but merely an agreement by which McCormick was to have possession of the truck': until plaintiff ascertained the genuineness and value of the notes and security given by McCormick, and if no title was to pass until such time, then McCormick and those holding under him did not obtain title to the truck, and their verdict must be for plaintiff. Of course this instruction directs a verdict, wholly ignoring the conditional sales statute.

It is unnecessary for us to decide whether the agreement between plaintiff and McCormick amounted to a conditional sale (conceding that there is a presumption that the Kansas law is the same as ours), for the reason that defendant was not a purchaser within the meaning of the conditional sales statute, supra. Sections 7553, 7555, 7561, and 7562, R. S. 1919, contemplate that in a sale of a motor vehicle, other than by manufacturer or dealer, the owner or vendor shall have a certificate of registration and that (section 7561)—

"* * * The vendor shall, in the presence of an officer qualified to take acknowledgments to deeds, indorse his name on the back of said certificate of registration described in section 7555, and the vendee shall also, in the...