Pearl v. Interstate Securities Co., No. 40317.

• Court: Missouri Supreme Court
• Writing for the Court: Hyde
• Citation: 206 S.W.2d 975
• Parties: MARION PEARL d/b/a ECONOMY AUTO SALES, Appellant, v. INTERSTATE SECURITIES COMPANY.
• Docket Number: No. 40317.
• Decision Date: 08 December 1947

206 S.W.2d 975 MARION PEARL d/b/a ECONOMY AUTO SALES, Appellant,
v.
INTERSTATE SECURITIES COMPANY. No. 40317. Supreme Court of Missouri. Court en Banc, December 8, 1947.

[206 S.W.2d 976]

Appeal from Jackson Circuit Court. — Hon. John R. James, Judge.

REVERSED AND REMANDED.

Kenneth H. Sanford and J.W. Buffington for appellants.

(1) There is nothing in the Code of Civil Procedure providing for a motion for a "directed judgment" at the close of plaintiff's case in chief, or at any other time. Code of Civil Procedure, Laws 1943, p. 353 et seq. (2) Plaintiff showed ownership and exclusive right of possession in the cars in question at the time of institution of his suit and at the time of trial thereof. Rankin v. Wyatt, 73 S.W. (2d) l.c. 768. (3) Plaintiff's evidence showed that defendant took wrongful possession of the cars in question prior to, and at the time of the institution of the suit, and converted the same to its own use. Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 531; Sullivan v. Gault, 299 S.W. l.c. 1117; Maxwell v. Durham, 297 S.W. 94; Kalinowski v. Newhouse, 53 S.W. (2d) 1096. (4) The delivery of the cars in question by plaintiff to the Security Motor Company was conditioned on the payment of the check given plaintiff at the time he delivered the cars to the motor company and on which check payment was refused and possession and right of possession of said cars thereby remained in plaintiff. Johnson-Brinkman Co. v. Central Bank, 116 Mo. l.c. 570; Maxwell v. Dunham, 297 S.W. l.c. 97; Rock Island Plow Co. v. Perry, 20 S.W. (2d) 956; Farm & Home Savings & Loan Assn. v. Stubbs, 98 S.W. (2d) l.c. 330. (5) The plaintiff's evidence in chief showed right of exclusive possession of said cars at all times in plaintiff and an illegal taking and withholding and conversion of them by the defendant who thereby became and was a mere trespasser constituting a valid and substantial prima facie case for recovery by plaintiff, with no evidence offered by the defendant to the contrary. Cases cited under (3) and (4) supra.

Harry B. Jenkins for respondent.

(1) Under the record, the plaintiff intended to do and did pass title on to his vendee, Security Motor Company, by transferring the titles to the Chevrolet and Buick cars, properly assigned and signed in blank by the owners from whom the plaintiff purchased the cars. Rankin v. Wyatt, 73 S.W. (2d) l.c. 768; 1 Am. Jur., p. 320; State v. Short, 174 S.W. (2d) l.c. 823. (2) The acceptance of a check by the plaintiff from his vendee and the delivery by plaintiff of title wherein all parties to the transaction meant to pass title, conveys all title as to third parties whose rights have intervened. Rankin v. Wyatt, 73 S.W. (2d) l.c. 768; Pettus v. Powers, 185 S.W. (2d) l.c. 874. (3) A bona fide signature on a certificate of title, without acknowledgment, conveys title for all purposes. 1 Am. Jur., p. 321; State v. Short, 174 S.W. (2d) l.c. 823; Anderson v. Arnold-Strong Motor Co., 88 S.W. (2d) l.c. 421; Pettus v. Powers, 185 S.W. (2d) l.c. 874; Connecticut Fire Ins. Co. v. Cox, 268 S.W. 87; Howell v. Connecticut Fire Ins. Co., 257 S.W. l.c. 181. (4) The plaintiff's evidence showed that he accepted title from Backer on the Chevrolet sued for, signed by Backer but not acknowledged, and from one car dealer, McManama, who had purchased the Buick from one Cunningham who had executed the title in blank, without acknowledgment. Both titles were in blank. This conveyed and passed title. Sec. 5313, R.S. 1939, and cases cited; Murphy v. Holliway, 168 S.W. (2d) l.c. 113; 7 Blashfield, Cyc. of Automobile Law and Practise, Sec. 4255; Haggerty v. St. Louis Ice Co., 143 Mo. 238. (5) This is a conversion suit. Plaintiff must show, as in a replevin suit, that he is entitled to the immediate, exclusive possession of the property involved. Plaintiff in conversion must recover on the strength of his own title rather than on the weakness of defendant's title. Personal Finance Co. v. Lewis Inv. Co., 138 S.W. (2d) 655. (6) This plaintiff is attempting to recover from defendant with no strength of title in himself but is attempting to attack the title of defendant and hopes to recover on the weakness of defendant's title, which is not permitted as it is a fundamental rule of law that in replevin or trover plaintiff in order to recover must recover on the strength of his own title and not upon the weakness of defendant's title. Jackson v. Rothschilds, 99 S.W. (2d) 859; Barnard State Bank v. Lankford, 11 S.W. (2d) 1084. (7) Plaintiff in conversion must not only show exclusive title in himself but also must show that he is entitled to the immediate exclusive possession of the property. Right to possession is prerequisite to recovery for conversion. St. Louis Catering Co. v. Glancy, 242 S.W. 392.

HYDE, J.

Action in two counts, replevin and conversion. Judgment was entered for defendant at close of plaintiff's evidence. Plaintiff appealed to the Kansas City Court of Appeals which affirmed the judgment. [Pearl v. Interstate Securities Co., 198 S.W. (2d) 867.] We have ordered the case transferred.

A summary of the pleadings and statement of the evidence may be found in the opinion of the Court of Appeals. Plaintiff, a used car dealer in the city of Mexico, purchased two used cars which he drove to the city of Independence to sell to the Security Motor Company (hereinafter called Security) for cash. He took a check for agreed price which he deposited in his bank at Mexico the next morning but which was returned unpaid in about four days. Likewise, on the next morning, Security mortgaged the cars to defendant. At the time of the delivery of the cars, plaintiff also delivered with them, to Security, the title certificates

206 S.W.2d 977

issued by the Commissioner of Motor Vehicles to the original owners from whom plaintiff had purchased them. (We consider the Cunningham deal as a sale to plaintiff because McManama who was with plaintiff at the time, furnished the purchase price for him and took his check which Cunningham would not take; or at least the court could reasonably so find.) The assignment on each certificate was signed by the owner but not acknowledged and no name of a transferee was written therein, this space being left blank. Plaintiff had previously sold used cars to Security buyers at Mexico and had taken its checks...