South Side Buick Auto Co. v. Bejach

• Decision Date: 05 January 1932
• Docket Number: No. 21747.,21747.
• Citation: 44 S.W.2d 870
• Parties: SOUTH SIDE BUICK AUTO CO. v. BEJACH.
• Court: Missouri Court of Appeals

44 S.W.2d 870

SOUTH SIDE BUICK AUTO CO. v. BEJACH.

No. 21747.

St. Louis Court of Appeals. Missouri.

January 5, 1932.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Replevin by the South Side Buick Auto Company against Harry Bejach. From judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

Louis Hudson, of St. Louis, for appellant.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for respondent.

BECKER, J.

It seems that the plaintiff below had sold to the defendant a Buick automobile for the sum of $1,654. He paid some cash and turned over a car he then owned as part payment, gave a chattel mortgage note for $535, which cash, car, and mortgage left a deficiency of $169 on the purchase price, for which sum defendant gave plaintiff his promissory note.

It is conceded that the defendant in due course paid off the $535 chattel mortgage note and also paid $69 on the $169 note, but refused to pay the remaining $100 of said note, alleging that he had a counterclaim against plaintiff arising out of a defective rear housing of the automobile, which defendant claimed was covered by plaintiff's written guaranty at the time he purchased the car from it.

In this situation plaintiff began an action in replevin before a justice of the peace, seeking possession of the automobile sold to the defendant, asserting that the said $169 note given by defendant as part purchase price was secured by a chattel mortgage on the automobile purchased.

Defendant entered his appearance and filed an answer containing a general denial and a further answer admitting he purchased the automobile upon the terms and in the manner we have set out above, but alleging that the $169 note was an unsecured promissory note upon which he had paid $69, leaving a balance due thereon of $100, and alleged "that at the time he signed the note for $169, he did not sign the chattel mortgage which plaintiff says it owns and possesses and now calls upon plaintiff to produce said mortgage." Defendant also filed a counterclaim setting up that the car he purchased from plaintiff had been guaranteed free from defects, bad workmanship, and bad material, and that within the time limit of said guaranty the rear housing of the automobile, because of a defect in the material, became cracked, causing the automobile to become unsafe for operation; that notice of this defect was given plaintiff with the request that it replace the defective parts, but it refused to do so, "whereupon defendant refused to pay plaintiff the $100 on the promissory note and still refuses to do so, and states that he has been injured and damaged in the sum of $800, because of the failure to replace the defective parts under said warranty and guarantee. * * *"

"Wherefore defendant prays that the court declare the said mortgage to not be the act of this defendant and that the court render judgment for defendant on his counterclaim in the sum of $800, less the amount, if any, the court may find the defendant owes plaintiff on said promissory note, but not as a lien upon said automobile."

The case was tried before a justice, who found in favor of defendant on plaintiff's cause of action and refused it replevin, and rendered judgment in favor of defendant and against plaintiff and its sureties on defendant's counterclaim in the sum of $700 and costs.

Plaintiff took an appeal to the circuit court of the city of St. Louis, and after two full terms had elapsed, at defendant's request, the circuit court affirmed the judgment of the justice for failure to pay the statutory filing fee within the time allowed by law, but two days later, at the request and upon motion of plaintiff below, set aside such order and judgment and thereafter heard the case to a jury upon the merits. A verdict resulted, finding that the chattel mortgage alleged to have been signed by defendant, and upon which the original action was based, had in fact been signed by the defendant at the time set out in the mortgage, and gave plaintiff a special interest in defendant's automobile in the sum of $100, and found in favor of the defendant on his counterclaim against plaintiff in the sum of $87 for damages for defects in the automobile. Defendant in due course appeals.

It is here urged that the trial court erred in setting aside the affirmance of the judgment of the justice after two full terms of the circuit court had elapsed after the return term of the appeal. This point may not be considered here on appeal, since the attention of the trial court was not called to such ruling in the motion for a new trial. Hawkins v. City of St. Joseph (Mo. Sup.) 281 S. W. 420; Nyberg v. Wells (Mo. App.) 14 S. W.(2d) 529; Kirby v. Heaton (Mo. Sup.) 286 S. W. 76; Daggett v. Amer. Car & Foundry Co. (Mo. App.) 284 S. W. 855.

Complaint is made in that the trial court permitted plaintiff to introduce in evidence a chattel mortgage which plaintiff alleged was signed by and given by defendant to plaintiff as security for the payment of the $169 note, the ground of objection being that the plaintiff did not introduce the note itself in evidence.

The record discloses that plaintiff adduced testimony that the note could not be found, under which circumstances it needs no citation of authorities that parol evidence as to the note was permissible. Again, under the pleadings there was no question raised as to the execution by defendant of the said note for $169, nor of his having paid $69 on the principal thereof, leaving a balance of $100 unpaid. The sole issue was whether or not the said note had in fact been secured by a chattel mortgage upon the automobile herein sought to be replevined. Beyond that the record...