Olson v. Penrod
| Decision Date | 06 March 1973 |
| Docket Number | No. 34649,34649 |
| Citation | 493 S.W.2d 673 |
| Parties | Lloyd OLSON, Plaintiff-Appellant, v. Donald PENROD, Defendant-Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
John H. Mittendorf, Union, for plaintiff-appellant.
Thomas J. Briegel, John B. Berkemeyer, Union, for defendant-respondent.
Plaintiff filed a petition in replevin alleging the ownership and seeking the return of a John Deere No. 1010 crawler of the value of $3,500.00, together with damages at the rate of $50.00 per day for the taking and detention of the same. Defendant in his answer alleged he was the owner and entitled to possession of the crawler. A jury was waived, the cause was tried to the court, and a judgment was entered in favor of defendant, from which the plaintiff appeals. We affirm.
Defendant purchased the crawler from Heisel Equipment Company in 1969 for $4,563.36, by paying $1200.00 down and giving Heisel a security agreement for the balance of $3,363.36. After making monthly installment payments the amount owed by defendant on April 5, 1971, was $948.69. On that day William F. Aubuchon, Jr., who had borrowed the money from his father, William M. Aubuchon, Sr., 1 entered into a written contract, which was recorded, whereby Aubuchon, Jr., bought the crawler from defendant for $4,000.00, by making a down payment of $948.69 to defendant (so that defendant could discharge the lien held by Heisel), and agreeing to pay the balance of $3,051.31 at the rate of $10.00 for every 1000 feet of lumber cut and sold by Aubuchon, Jr. Seventeen days later, on April 22, 1971, Aubuchon, Jr., executed, had notarized, and gave to his mother for delivery to his father the document which reads as follows, marked plaintiff's exhibit 2:
'April 22 1971
'To Whom It May Concern: F.
'I William F. Aubuchon do hereby authorized, and appoint as my repersentative (sic) one William M Aubuchon, relation father, to act on my behalf, to make any decision which needes (sic) to be made during my absence which is for the future, and immediate finical (sic) well being, both for my business, as well as my family, and any other concerned legal parties.
'This authorization to pertain to any assests (sic) which exist at the time. (Tools & equipment).
'This decision should be his responsibility only upon my absence.
'Signed
/s/ William F. Aubuchon
'Witness:--William F. Aubuchon
'Witness:--/s/ Notary Public 4--22--71
/s/ R. H. Brown
/s/ My com. Expires 10--4--72' According to Aubuchon, Jr., who was called as a witness by the defendant, he used the crawler on his father's farm, but subsequently he moved it to 'the Kleekamp land.' At that point in the testimony of the witnesses the times when the events subsequently referred to occurred are by no means as definite as they might have been, but we deduce as best we can from the record that after moving the crawler to the Kleekamp property, Aubuchon, Jr., secured employment as a tractor-trailer driver from a man named Taylor and went to South Dakota. Precisely how long he was gone was not shown, but, while he was away his father had the crawler moved by a man named Pointer to Pointer's shop. After his return from South Dakota, Aubuchon, Jr., learned that his father had had the crawler moved, and at the trial testified that he had no objection to his father having taken the crawler because he owed money to his father. However, he also testified that upon his return he telephoned Pointer about getting possession of the crawler but objected to the amount Pointer said he would charge to move the machine, and did not regain possession of it.
Plaintiff related that he had first observed the crawler when he drove by the farm of Aubuchon, Sr., on which it was sitting. He was unable to state the date other than to say that it was 'quite a period of time,' around in the summer of 1971, before plaintiff contacted Aubuchon, Sr., by telephone, 'the latter part of August,' 1971. He inquired of Aubuchon, Sr., whether the crawler was for sale, an agreement for a sale was reached, and on September 1, 1971, plaintiff paid Aubuchon, Sr., $3,500.00 for the crawler, and Aubuchon, Sr., executed and delivered to plaintiff a Bill of Sale for the machine, signed by Aubuchon, Sr., and agreed to deliver the machine, which was then in the possession of Pointer. At the direction of plaintiff, Aubuchon, Sr., delivered the machine on September 3 or 4, 1971, to a repairman named Williams, situated in Lonedell, because plaintiff wanted Williams to check it over and make certain repairs on the crawler.
Aubuchon, Jr., had never made any payment on his obligation to defendant other than the down payment of $984.69, and plaintiff had twice spoken to Aubuchon, Jr., about the obligation. Shortly before September 20, 1971, defendant learned from Aubuchon, Jr., that the crawler was in Lonedell. He thereupon had Aubuchon, Jr., sign the following instrument marked as defendant's Exhibit C:
'Union, Mo.
'Sept. 20, 1971
'To: Donald Penrod
'You are hereby authorized to repossess John Deere Crawler tractor model #1010 serial #11235 without any necessity to replevy same: and I further state that Harvey Pointer performed no work or services upon the same upon my authority or upon the authority of any one acting for me.
'/s/ x William F. Aubuchon
'Witness James B. Hanson'
Armed with that instrument and the buysell contract signed by Aubuchon, Jr., defendant on September 22, 1971, obtained possession of the crawler from Williams upon payment of the cost of repairs Williams had made on the machine. Plaintiff's replevin action followed on October 12, 1971.
There was evidence on plaintiff's behalf that prior to paying Aubuchon, Sr., for the crawler, plaintiff had orally agreed to rent it to Michael Congardi, at $50.00 per day. Congardi, who testified he was present when plaintiff paid the $3500.00 to Aubuchon, Sr., confirmed the rental agreement.
Since plaintiff's action was one in replevin it was incumbent upon him to both plead and prove his right to the immediate possession of the crawler and that defendant was wrongfully detaining it. Auffenberg v. Hafley, Mo.App., 457 S.W.2d 929; Citizens Discount and Investment Corp. v. Wood, Mo.App., 435 S.W.2d 717. And it is a settled rule that a plaintiff's right of recovery...
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...immediate right to possession." Turman v. Schneider Bailey, Inc., 768 S.W.2d 108, 112 (Mo. Ct. App. 1988) (citing Olson v. Penrod, 493 S.W.2d 673, 675-76 (Mo. Ct. App. 1973)). Defendant Johnson argues2 that "the replevin count fails at the outset because it does not allege that [Defendant J......
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