Seward v. Evrard

• Decision Date: 01 July 1949
• Citation: 222 S.W.2d 509,240 Mo.App. 893
• Parties: Everett Seward, d/b/a Kelley Seward Motor Company, Respondent, v. Norman Evrard, Defendant and Third Party Plaintiff, and Cross Town Motors, Inc., a Corporation (Third Party Defendant), Appellant
• Court: Missouri Court of Appeals

222 S.W.2d 509

240 Mo.App. 893

Everett Seward, d/b/a Kelley Seward Motor Company, Respondent, v. Norman Evrard, Defendant and Third Party Plaintiff, and Cross Town Motors, Inc., a Corporation (Third Party Defendant), Appellant

Court of Appeals of Missouri, St. Louis District

July 1, 1949

Appeal from the Circuit Court of the City of St. Louis; Hon. Wm. L Mason, Judge.

Judgment in favor of plaintiff and against third party defendant on that defendant's counterclaim affirmed judgment in favor of plaintiff and against third party defendant on plaintiff's cause of action reversed.

Igoe Carroll, Keefe & Coburn, Richmond C. Coburn and A. M. Meyer for appellant.

(1) Plaintiff is estopped to deny the validity of the title of the third party defendant. Pearl v. Interstate Securities Co., 206 S.W. 2d 975; Peper v. American Exchange Nat'l. Bank, 210 S.W. 41. (2) Appellant was a bona fide purchaser and the Court below erred in refusing so to hold. Authorities, supra. (3) Appellant had a right to rely upon the administrative construction of the Motor Vehicle Act by the Director of Revenue, and nothing is subtracted from its rights by reason of the fact that that official, following his usual practice where succeeding applications for titles are presented together, marked appellant's application "cancelled" and issued a title to its assignee upon the defendant's subsequent application. Sec. 8382, R. S. Mo. 1939, re-enacted, Laws Mo. 1947, H. B. No. 273. In the construction of a statute, the court may take into consideration the practical construction theretofore given the statute by the general public or by those affected by the law, especially where such construction has been long continued and acquiesced in by the legal profession. 50 Amer. Jur., pp. 308-309, and cases cited, Notes 12, 13, 14 and 15; Harvey v. Missouri Athletic Club, 261 Mo. 576, 170 S.W. 904, L. R. A. 1915 C 876, Ann. Cas. 1916 D 931; Westerman v. Supreme Lodge, K. P., 196 Mo. 670, 94 S.W. 470, 5 L. R. A. (N. S.) 1114. A statute should not be so construed as to require a mere idle ceremony. Donnelly Garment Co. v. International L. G. W., 99 F.2d 309 (8th Cir.). (4) The Director of Revenue had the right to give faith and credit to the Public Acts and Records of the State of Arkansas, as evidenced by the Arkansas Certificate of Registration, in using "reasonable diligence in ascertaining whether the facts stated" in Appellant's application were true. Sec. 8382 (c), R. S. Mo. 1939, as amended, Laws 1947. Appellant had the same right. (5) Appellant should be protected in its purchase of the car, without any notice of a defect in Stoke's title, by the provisions of the Uniform Sales Act, which should be construed with and in furtherance of the beneficent purposes of the Motor Vehicle Act. Sec. 3513, R. S. Mo. 1939; Williston, Sales, Vol. I, Sec. 341, p. 805; Kingman Plow Co. v. Joyce, 194 Mo.App. 367, 184 S.W. 490; Lawrence, M. & C. v. Owens, 39 Mo.App. 318; Manufacturer's Discount Co. v. American Surety Co., 161 N.E. 660 (Md.App. 1928); Glass v. Continental Guaranty Corp., 81 Fla. 687, 88 So. 876, 25 A. L. R. 312; Jones, Chattel Mortgages and Conditional Sales, Vol. 3, Sec. 1105, pp. 181-3. (6) Plaintiff was guilty of a breach of the duty imposed by Sec. 8382, supra, and that breach of duty gave rise to an action by any person injured, and the court erred in finding against appellant on its counterclaim. Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387, L. R. A. 1918 A, p. 166, and note; Drain v. St. Louis I. M. & S. R. Co., 10 Mo.App. 531, S. C., 86 Mo. 574; Hanlon v. Missouri P. R. Co., 104 Mo. 381, 16 S. W., p. 233; Graitiot v. Mo. P. R. Co., 116 Mo. 450, 21 S. W., p. 1094; Karle v. K. C., St. J. etc., R. Co., 55 Mo. 476; Easley v. Mo. P. R. Co., 113 Mo. 236, 20 S. W., p. 1073; Fortune v. Mo. P. R. Co., 10 Mo.App. 252, 4 Am. Neg. Cas. 337; Brannock v. Elmore, 114 Mo. 55, 21 S. W., p. 451; Hutchinson v. Mo. P. R. Co., 161 Mo. 246, 84 Am. St. Rep. 710, 61 S.W. 852; Jackson v. Kansas City, etc., R. Co., 157 Mo. 621, 80 Am. St. Rep. 650, 58 S.W. 32; Weller v. Chicago etc., 164 Mo. 181, 86 Am. St. Rep. 592, 64 S.W. 141; Eckhard v. St. Louis Transit Co., 190 Mo. 593, 89 S. W., p. 602; Holland v. Mo. P. R. Co., 210 Mo. 338, 109 S.W. 19; Reeves v. K. C. St. L. & C., 251 Mo. 169, 158 S.W. 2; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606. The violation of a duty enjoined by statute imposed for the public benefit entitles one injured thereby to an action for damages. Union P. R. Co. v. McDonald, 152 U.S. 262, 38 L.Ed. 434, 14 S.Ct. 619; Noble v. Richmond, 31 Grat. 271, 31 Am. Rep. 726; Platte & D., C. & M. Co. v. Dowell, 17 Colo. 376, 30 P. 68; O. & M. R. Co. v. McGehee, 47 Ill.App. 348; O'Donnell v. Providence, etc., 6 R. I. 211. When a duty arises, whether upon common law or statutory grounds, an action will lie for a breach thereof in favor of anyone injured by such breach. Terre Haute & I. Ry. Co. v. Williams, 69 Ill.App. 393 (Afd.), 172 Ill. 379, 64 Am. St. Rep. 44, 50 N.E. 116, 4 Am. Neg. Rep. 136; Osborne v. McMasters, 40 Minn. 103, 12 Am. St. Rep. 698, 41 N.W. 543; Gray v. McDonald, 104 Mo. 303, 16 S.W. 398; Baxter v. Coughlin, 70 Minn. 1, 72 N.W. 797; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 5 L. R. A. (N. S.) 187 and note; Wolf v. Smith (Ala.), 42 So. 824, 9 L. R. A. (N. S.) 338, and extensive note, to p. 392. Punitive damages are recoverable, the acts being wilful and done with malice, which is the intentional doing of a wrongful act without just cause. Cheek v. Prudential Ins. Co. (St. L. C. A.), 223 S.W. 754.

Franklin Miller and Frank P. Motherway for respondent.

(1) The transfer of possession of the secondhand motor vehicle in this case without an assignment of the Certificate of Title by the plaintiff at the time of the delivery of the automobile to Stokes passed no title and plaintiff is entitled to maintain either replevin against the defendant or an action for conversion against Third Party Defendant. R. S. Mo. 1939, Sec. 8382 (c); Muzenich v. McCain, 220 Mo.App. 502, 274 S.W. 888; Anderson v. Arnold Strong Motor Co., 229 Mo.App. 1170, 88 S.W. 2d 419; Droun v. Tough, 38 S.W. 2d 736; Platner v. Bourne, 275 S.W. 590; Universal Credit Co. v. Strong, 128 S.W. 2d 654; Hoshaw v. Fenton, 232 Mo.App. 137, 110 S.W. 2d 1440; Quinn v. Gehlert, 291 S.W. 158; Mathes v. Westchester Fire Ins. Co., N. Y., 6 S.W. 2d 66; 42 C. J., Sec. 776, Sec. 307; Pearl v. Interstate Securities Co., 206 S.W. 2d 975; Robertson v. Central Mfrs. Mut. Ins. Co., 207 S.W. 2d 59; Peper v. American Exchange Nat. Bank in St. Louis, 210 S.W. 2d 41. (2) Plaintiff is not estopped to deny his title and right to possession. Muzenich v. McCain, 220 Mo.App. 502, 274 S.W. 888; Security Credit Corp. v. Whiting Motor Co., 98 N. J. L. 45, 118 A. 695; American Sash & Door Co. v. Commerce Trust Co., 56 S.W. 2d 1034; 31 C. J. S. 325, Sec. 103, p. 340, Sec. 104 (C), 322, Sec. 101, p. 323, Sec. 102, 19 Am. Jur. 696; 42 C. J. 751, Sec. 242; Pearl v. Interstate Securities Co., 206 S.W. 2d 975; Peper v. American Exchange Nat. Bank in St. Louis, 210 S.W. 2d 41. (3) Appellant who purchased the personal property of respondent from one not authorized to sell the same may be held liable for the conversion thereof, regardless of the fact that the purchaser was honestly mistaken or acted innocently in good faith and without knowledge of the seller's right to make the sale. Trover and Conversion, 53 Am. Jur. p. 832; Allen v. Bagley, 135 S.W. 2d 1027. (4) Respondent's recovery is not barred by the conditional sale statute of Missouri, which has no application to this case. Muzenich v. McCain, 220 Mo.App. 502, 274 S.W. 888.

OPINION

Wolfe, C.

This was commenced as an action in replevin in which the plaintiff sought recovery against defendant Evrard of a Chevrolet coach. The defendant filed a third party petition and by leave joined Cross Town Motors, Inc., as a third party defendant, alleging that he had purchased the Chevrolet coach from it. The plaintiff amended his petition by adding a count in conversion against the third party defendant and the third party defendant then answered and asserted a counterclaim against the plaintiff. The cause was tried by the court upon an agreed statement of facts and upon a stipulation filed, and resulted in a judgment against the third party defendant from which it has appealed.

The facts agreed upon are substantially as follows:

The plaintiff was engaged in the business of buying and selling second-hand automobiles in the city of St. Joseph, Missouri, under the name of Kelley-Seward Motor Company. On August 15, 1947, he purchased, from the J. F. Newton Motor Company, a second-hand Chevrolet coach, for which he paid, and received a certificate of title assigned to him.

On August 18, 1947, the automobile was taken to the St. Joseph Automobile Auction Company, which was engaged in the business of auctioning second-hand automobiles to dealers in such cars. This firm was also operated by the plaintiff. Plaintiff knew that only dealers registered as such by the states in which they did business were permitted to buy at this auction, but no check was maintained to be sure that all purchasers were such dealers. The only safeguard maintained in this respect was the posting of signs at the place of the auction advising bidders that only registered dealers could participate. At the time the automobile was turned over to the St. Joseph Automobile Auction Company the usual car receipt was filled out although the transaction of delivering the car to the auction company was really one between the plaintiff and himself.

The automobile was auctioned off on August 19 and the highest bidder was a man who represented himself to be Fred S. Stokes, doing business as the Stokes Motor Company, at...