Pearl v. Interstate Securities Co.
| Decision Date | 02 December 1946 |
| Docket Number | 20708 |
| Citation | 198 S.W.2d 867 |
| Parties | PEARL v. INTERSTATE SECURITIES CO |
| Court | Kansas Court of Appeals |
Kenneth H. Sanford and J. W. Buffington, both of Mexico, for appellant.
Harry B. Jenkins, of Kansas City, for respondent.
This action was brought June 7, 1944, in two counts. The first count is an action in replevin to repossess two certain automobiles, wherein plaintiff prays for possession, $ 500 damages for retention, and in case delivery cannot be had for $ 3,000 damages. It is alleged therein that plaintiff is the owner and entitled to the cars described, and that defendant wrongfully took possession of the same on April 7 1944, and unlawfully detains them. The second count is for conversion of the same two cars, of alleged value of $ 2,600 with similar allegations as to plaintiff's ownership and right of possession, and as to the unlawful taking by the defendant, and alleges that defendant has converted the same to his own use and disposed thereof, to plaintiff's damage in the sum of $ 3,000. The answer to both counts is a general denial and a plea of estoppel. At the close of plaintiff's evidence the court sustained defendant's motion for a directed 'judgment'. From the judgment thereupon rendered, plaintiff appealed.
By its amended answer, defendant alleges that plaintiff's Count I fails to state a claim on which relief can be granted, and denies each and every other allegation therein contained. As to Count II, the answer alleges that the petition does not state a cause of action, avers lack of jurisdiction over the subject matter, and improper joinder of causes, followed by a general denial. The answer further asks dismissal of Count II on grounds of departure from the original pleadings, which contained only Count I. The answer further alleges that plaintiff is estopped to deny title in Counts I and II, for the reason that plaintiff intentionally delivered the motor cars and title papers to the Security Motor Company with intent to sell and convey the same; that he knew the said company was engaged in selling used cars and would sell or refinance the same, and by his conduct he enabled defendant to dispose thereof; that the plaintiff accepted the check of that company as full payment without reservations; that the next day said company did mortgage and sell said motor cars to defendant; that defendant had no notice of any claim of the plaintiff; that plaintiff is estopped to deny title in defendant, when to do so destroys his own title; that if defendant's title is null and void, the plaintiff's title is likewise.
The plaintiff's evidence, in substance, tended to show the following facts:
That plaintiff is a used car dealer in Mexico, Missouri, and purchased on August 12, 1942, from Forrest Backer, a Chevrolet motor car, Motor No. AA-40592, paying therefor $ 600 in cash and received the car and a title certificate which had been duly issued to the seller, who, however signed the assignment thereon without filling in the name of the assignee. Neither was the assignment acknowledged.
On August 14, 1942, plaintiff purchased a Buick car, Motor No. 44090372, for $ 795. Certificate of title to the Buick had been issued in due form to the seller, Charley A. Cunningham. He refused to accept the plaintiff's check for the sale price, and P. J. McManama, who was present, paid Cunningham the cash, and Cunningham delivered over the car and title certificate to McManama, but signed the assignment, leaving the name of the assignee blank, and did not acknowledge the same. Thereupon plaintiff gave McManama a check for the amount of the price paid and received from McManama the car and the title certificate without further change therein.
On the day following the Buick transaction, plaintiff brought the Buick and the Chevrolet to the place of business of the Security Motor Company at Independence, Missouri, to which company he had sold several cars in the past. There he delivered the said two cars to that company for the total purchase price of $ 1,525. The deal was to be on a cash basis, but he accepted the company's check for the amount. He also delivered to the company the two title certificates and assignments as described, without further insertions or changes therein. Plaintiff deposited this check the following morning in his bank and several days later was notified that the check had been protested for insufficient funds. Plaintiff realized nothing on the check.
Plaintiff's custom had been, when taking a check for the sale price of a car, to attach the certificate of title to the check and if the check cleared, the certificate would be delivered by the bank to the buyer. In this case, however, the Security Motor Company requested the title papers at once, which made plaintiff a little suspicious, but he complied. Plaintiff testified he thought if the titles did not pass and the check cleared, he would 'notarize' them and return them to the buyer. He said he knew the titles were not good so far as the Security Motor Company was concerned. In the meantime, the Security Motor Company was placed in the hands of a receiver and both appellant and respondent later filed intervening petitions in the receivership proceedings and claimed title to the cars in question. It is indicated that the receivership proceeding was dismissed for want of jurisdiction.
Among other documents introduced by plaintiff in the present case is a subsequent certificate of title to the Chevrolet car issued by the Commissioner of Motor Vehicles of this state to the Interstate Securities Company (respondent), dated April 15, 1944, with an assignment on the reverse side to E. C. Lotz Motors, duly executed, and reassignment on June 20, 1944, by the E. C. Lotz Motors to Fred A. Bertram, both assignments being duly acknowledged. There also appears an application to the Commissioner by the respondent for certificate of title to the Buick car dated April 12, 1944, wherein it is stated that the car had been purchased from the Security Motor Company through foreclosure of note and mortgage. To this application an affidavit of the manager was attached, stating that on April 12, 1944, the respondent had repossessed the Buick under chattel mortgage dated August 15, 1942, filed for record, and assigned to affiant, credit manager of the respondent. The application requested that title be issued to the present record owner and show transfer to the name of the party from whom repossessed, and to show subsequent transfer to respondent. It was admitted that respondent thereby obtained certificate of title to the Buick in respondent's name and in its transferee.
In support of appellant's sole point that the court erred in sustaining the motion for a directed verdict, he urges, in substance, the following reasons:
1. The present civil code does not provide for motion for a directed 'judgment' at the close of plaintiff's case or at any other time.
2. Plaintiff showed ownership and exclusive right of possession at time suit was begun and at time of trial.
3. Plaintiff's evidence showed that defendant took wrongful possession of the cars prior to and at the time of the suit, and converted same to its own use.
4. Plaintiff's delivery of the cars to the Security Motor Company was conditioned upon payment of that company's check, on which payment was refused, and right of possession therefore remained in plaintiff.
5. Under the evidence defendant was a mere trespasser and a prima facie case was made by plaintiff.
Appellant's first reason has no merit. Section 112 of the Code of Civil Procedure, Mo.R.S.A. § 847.112, provides for a motion for a directed verdict by a party at the close of the evidence offered by an opponent. Laws of Missouri 1943, pp. 353-397.
Appellant's reasons 2, 3, and 4 may be considered together. Appellant has apparently abandoned any attempt to establish that he had any title to the cars in question. In his brief he admits that the respective assignments received by him did not contain the names of the assignees as required by Section 8382(c), R.S.Mo.1939, Mo.R.S.A., and 'as a consequence plaintiff did not acquire title to either of the cars if the said Motor Vehicle Act applies to the facts of this case'. He also admits in his brief that 'so far as this record shows the title to these cars has at all times remained, respectively, in Backer and McManama'; that 'the titles in question being defective, passed no title whatsoever to respondent'; that 'the assignments and titles in question were defective and hence void'. He states that 'plaintiff is not claiming under the 'muniments of title' referred to'. Appellant rests his case on the theory that under his evidence he did have, as against respondent, and every one else except the original title holders, an exclusive and superior right of possession, and that respondent is a mere trespasser respecting the cars in question.
In both replevin and in actions for conversion, plaintiff must establish his right of recovery on the strength of his own title or right, and not on the weakness of the title or right of the party sued. Barnard State Bank v. Lankford, 223 Mo.App. 519, 526, 11 S.W.2d 1084, 1088; Personal Finance Co. of Mo. v. Lewis Inv. Co., Mo.App., 138 S.W.2d 655. Plaintiff, never having had any title to the cars, and having voluntarily parted with possession of them in an effort to sell them, now claims a right of possession superior to that of defendant, who acquired possession of the cars from plaintiff's purported buyer and thereafter obtained...
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