Ozark Acceptance Corp. v. Yellow Truck & C. Mfg. Co.

• Decision Date: 05 March 1940
• Docket Number: No. 6137.,6137.
• Citation: 137 S.W.2d 965
• Court: Missouri Court of Appeals
• Parties: OZARK ACCEPTANCE CORPORATION v. YELLOW TRUCK & COACH MFG. CO.

137 S.W.2d 965

OZARK ACCEPTANCE CORPORATION v. YELLOW TRUCK & COACH MFG. CO.

No. 6137.

Springfield Court of Appeals. Missouri.

March 5, 1940.

Rehearing Denied March 21, 1940.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Action by the Ozark Acceptance Corporation against the Yellow Truck & Coach Manufacturing Company for the conversion of an automobile truck. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank E. Doyle, of St. Louis, and G. C. Murrell, of Hartville, for appellant.

H. D. Green and A. W. Landis, both of West Plains, for respondent.

FULBRIGHT, Judge.

This is an action between the Ozark Acceptance Corporation, plaintiff and the Yellow Truck and Coach Manufacturing Company, defendant, for the alleged conversion of a certain automobile truck. The suit was filed on the 4th day of January, 1939, in the Circuit Court of Howell County, and later, on application for a change of venue by defendant, the cause was transferred to Wright County where it was tried March 1, 1939, by a jury, resulting in a verdict and judgment in favor of plaintiff, for the sum of $704 plus interest, from which judgment defendant duly appeals to this court.

The petition is in conventional form and prays judgment against the defendant for damages in the sum of $900 with costs of this action. The answer is a general denial and as a special defense denied the conversion and alleged plaintiff did not have a valid chattel mortgage on the truck; that if the mortgage were valid otherwise, it was not paramount to the claim of defendant which took possession of the truck before the alleged chattel mortgage was filed for record; that plaintiff delayed filing the alleged mortgage for an unreasonable length of time; that if plaintiff loaned the mortgagor any money the loan was made before the mortgagor had possession of the truck; that plaintiff's mortgagor, Lashley, did not pay defendant for the truck; that no title to said truck was to pass from defendant to Lashley until his personal check cleared; that the check was returned by the bank unpaid; that no bill of sale or invoice was delivered to Lashley by the defendant and that Lashley never had title to the truck, and any mortgage given to him by plaintiff is null and void.

The undisputed facts show that plaintiff, respondent, is a corporation engaged in loaning money on trucks and automobiles with its office in West Plains, Missouri; that defendant, appellant, is a corporation and was a distributor of trucks in St. Louis; that C. R. Lashley was engaged in selling trucks in West Plains, Missouri; that during the year, 1937, Lashley bought from 40 to 50 trucks from defendant; that sometimes Lashley paid cash and sometimes he delivered a bank draft for trucks; that the truck in question was delivered by defendant to one Dean Scott, Lashley's employee who had gone to St. Louis after it; that plaintiff made Lashley a loan of $704.62 and took as security a chattel mortgage on this truck; that plaintiff demanded payment of the note and possession of the truck from Lashley within four or five days after the mortgage was taken, its conditions having been broken; that thereafter defendant took the truck from Lashley without process and without any record evidence of a lien showing its right to the truck.

Plaintiff's evidence tended to show that the truck was delivered to West Plains on July 9th or 10th; that to the best of Lashley's recollection it was paid for in cash; that an invoice accompanied the truck or was sent a few days later; that the invoice was later seen in Lashley's possession at West Plains, Missouri; that on July 8, 1937, plaintiff made Lashley a loan on the truck, took a chattel mortgage thereon, which had been prepared on the 7th and which was signed and the description of the truck supplied when the truck was brought to plaintiff's place of business a day or two later, and thereafter was duly filed in the Recorder's office July 20, 1937; that in August, 1937, defendant took this truck from Lashley and stored same in a garage owned by Penrod & Stein, West Plains; that Lashley had given defendant only one check for a truck which was dishonored and it was for a truck which was shipped to Mountain Grove; that this check was taken care of by payment made to defendant's agent, Dickey; that from the time the chattel mortgage was taken by plaintiff, until the truck upon which the mortgage was given was repossessed by defendant from Lashley, Lashley owed defendant nothing except some small dishonored checks for parts which were taken up by Lashley on the same date defendant claims to have taken possession of the truck; that at the time defendant took possession of the truck it did it upon the pretext that it had a prior chattel mortgage thereon; that defendant's agent, Luther, who took possession of the truck claimed to have the chattel mortgage with him at the time, but had no dishonored check given in payment for the truck; that defendant's agent and attorney claimed, by letter, that defendant had a prior chattel mortgage to that of plaintiff's; that plaintiff made demand of defendant for the return of the truck in St. Louis and that defendant refused to deliver possession thereof; that the note and chattel mortgage under which plaintiff claims was given in good faith and that no part thereof has ever been paid.

Defendant's evidence tended to show that Lashley gave a check for $696.62 in payment of the truck in question; that the check failed to clear and that its agent went to West Plains and took the truck from Lashley between 1:00 and 3:00 o'clock P. M., July 20, 1937, stored it at Penrod & Stein's Garage and obtained a receipt which was offered in evidence and is dated July 20, 1937; that the receipt is in the same condition now as it was when he received it from Stein. The manager of defendant testified that a certified copy of plaintiff's mortgage shows it was filed for record at 4:20 o'clock P. M., on July 20, 1937. He further testified that the truck was delivered July 12, 1937, at midnight; that no...