State v. Wilson, 27271.

• Decision Date: 20 January 1948
• Docket Number: No. 27271.,27271.
• Parties: STATE ex rel. PAYNE v. WILSON et al.
• Court: Missouri Court of Appeals

207 S.W.2d 785

STATE ex rel. PAYNE v. WILSON et al.

No. 27271.

St. Louis Court of Appeals. Missouri.

January 20, 1948.

Rehearing Denied February 17, 1948.

Appeal from Circuit Court, Audrain County; Frank Hollingsworth, Judge.

"Not to be reported in State Reports."

Action by the State of Missouri on the relation of Emmett F. Payne against Floyd L. Wilson and the American Surety Company of New York on notary's bond. Judgment for plaintiff and defendants appeal.

Affirmed.

Newbill & Brannock, of Kansas City, and Fry, Edwards & Wright, of Mexico, for appellants.

W. C. Whitlow, of Fulton, and Latney Barnes, of Mexico, for respondent.

HUGHES, Judge.

This is a suit wherein Emmett F. Payne, relator, recovered judgment of $1,000 and costs against the appellants, defendants, on a notary's bond executed to the State of Missouri by Floyd L. Wilson, as principal, and The American Surety Company of New York as surety. From the judgment defendants perfected their appeal to this court.

Relator's amended petition on which the case was tried alleges Wilson's appointment as a Notary Public, the execution of the notary's bond sued on, and charges Wilson with knowingly, wilfully, falsely and fraudulently committing a breach thereof by certifying that on March 5, 1945, Emmett F. Payne personally appeared before him and acknowledged the execution of an assignment of the title certificate to an automobile owned by relator; that by reason of the false and fraudulent certificate of acknowledgement signed and sealed by defendant Wilson, the motor vehicle department of the State of Missouri subsequently issued a certificate of title to the vehicle involved to a Mrs. Dorothy M. Hames; that as a result thereof relator lost title to his motor vehicle which was of the actual value of $1,050. The petition prays for damages in the sum of $5,000, the penalty of the bond.

The joint answer of the defendants to the amended petition contained a motion to dismiss for failure to state a claim upon which relief can be granted; an allegation that the plaintiff had authorized his wife to sell the automobile in question and that his wife did sell the automobile and received the purchase price therefor; and the defendants further answered that an acknowledgement was not necessary for the validity of the assignment of title to the automobile and was not necessary to convey title to the automobile and that if plaintiff suffered any loss, which was denied, such loss was not caused by any acts of Floyd L. Wilson, alleged in plaintiff's amended petition.

By their fifth defense, which on relator's motion was stricken out, the defendants alleged that the relator was guilty of contributory negligence in that he executed the assignment without its having been completed as to assignee; that plaintiff had authorized his wife to sell and complete any necessary requirements to the transfer of title to the automobile and that such negligence on the part of the relator directly and proximately caused or contributed to cause any damage sustained by him.

On December 3, 1946, 17 days before the trial of the cause which began December 20, 1946, the defendants filed their offer of judgment in the cause, in which they offered to allow judgment to be taken against them for the sum of $1 and costs accrued.

The facts as disclosed in the trial were in substance as follows:

Relator, Emmett F. Payne, in 1941, purchased a Ford automobile of Boulware H. Jameson, a dealer at Fulton, Missouri, trading in another car for which he was allowed $400 and giving a note of $362.70 which represented the balance of the purchase price. Missouri title certificate No. 7,117,334 covering the car was issued to him on August 4, 1941.

On March 12, 1943, a new mortgage was placed on the car in favor of Mr. Jameson and the prior mortgage was canceled on March 13, 1943. The new mortgage was payable in monthly installments of $22 each and the note which it secured was purchased and held by the Callaway Bank. On June 16, 1943, Mr. Payne went into the bank and placed his name beneath the blank assignment of the certificate of title, in the space provided for such purpose on the back of the certificate. The assignment was in blank and was not acknowledged.

This entire controversy centers about subsequent dealings with the car and the certificate and their legal effects.

Mr. Payne was inducted into the military service on June 10, 1943, and, after reporting, was given an induction leave of five or six days, during which time he returned to his home at Fulton, and left to go into active service on June 18, 1943. He was next back in Fulton on convalescent leave about December 7, 1944. He and his wife had corresponded with each other about the sale of the car. At the time of the trial they had been divorced and Mr. Payne had asked for and received from her all of the letters which he had written to her while overseas, including those in which the sale of the car by her was discussed.

Among these letters was Exhibit "B-1" and "B-2", written November 10, 1943, in which Mr. Payne wrote his wife, "You ask me here about the car. I thought that $450.00 would be a good price for it. But, Honey, if you get $700.00 for it, go ahead and sell out, rim, stock and barrel. Ha! Ha!" At page 5 of the letter he added, "I don't know what to think about the car. It don't seem possible that they'd be so high. But, I believe it would be O.K. if you sold it. That would take a lot off of your mind."

He testified that his wife did not sell the car at that time because she needed it to get about in, that it meant a lot to her and to their baby; that discussion of the sale of the car was dropped when she said she needed it. He further testified that when he was home on convalescent leave in December of 1944 Lewis Coil offered him $1,050 for the car; he declined the offer and there was no further conversation with his wife about the sale of the car then.

Some five or six days later he left Fulton to return to Camp Endicott, Davisville, Rhode Island, and his wife returned to Kansas City. In February, 1945, he wrote to his wife asking her to come to Rhode Island for a visit, suggesting that she drive. She wrote that she wanted to sell the car to come up there. He testified that he wrote her not to sell the car.

After the enlistment of her husband Mrs. Payne received an allotment of $80 per month, which was increased to $120 per month when he went overseas, and she was employed while he was away but what she earned was not shown.

The relator further testified that in the letter of February, 1945, he further suggested that he would get a 9-day leave and meet her in St. Louis and help her drive through; that he did not hear from her for a few days and he then called her by telephone and she told him she had already sold the car and was coming on the train. He did not discuss the sale of the car with Ray Smith of Ray Smith Motors, who obtained it from Mrs. Payne.

After the mortgage held by the bank had been paid off, the bank sent the certificate of title, which Mr. Payne had endorsed in blank, to Mrs. Payne. Mr. Payne did not appear before the notary, Floyd L. Wilson, on March 5, 1945, when his acknowledgment to the assignment was purportedly made before Wilson as Notary Public, nor did he appear before Wilson at any other time, being on active duty in Rhode Island during that period. He did not write "Ray Smith Motors" on the back of the certificate of title, above his name, in the space provided for the name of the assignee.

On cross-examination he testified that in his deposition taken October 12, 1946, about six weeks before the date of trial, he had stated that the occasion of his signing the certificate on June 16, 1943, was that he and his wife had talked about in case his wife wanted to sell the car it might be preferable that he endorse the certificate in blank, and he had done so; that he had authorized her to sell it, but that she did not do so at the time; that when she reached Rhode Island he knew the car had been sold by her and she told him she had the sale proceeds in travelers checks with her. He did not send her money on which to make the trip to Rhode Island, nor did he ask her for the proceeds of the sale of the car; he was dissatisfied with the sale of the car but said nothing to her; that he saw that while he was in service there was little he could do regarding the sale of the car, and for that reason he did not complain.

Plaintiff called Ray Smith, a motor car dealer of Kansas City, Missouri, who testified that he had known Mrs. Payne for about two years, but did not know Mr. Payne personally although he had seen him in his place of business once with Mrs. Payne; that on February 27, 1945, Mrs. Payne brought the Ford in and he paid her $500, the low ceiling for it; that Mrs. Payne went to her home and obtained the certificate of title and brought it to his place. The assignment was in blank. Mr. Smith's wife inserted "Ray Smith Motors" in the space provided, in the presence of Mrs. Payne. His check of $500 to Mrs. Payne was dated February 27, 1945. The next day Mr. or Mrs. Smith took the certificate of title to the office of Floyd L. Wilson, Notary Public, who certified the acknowledgment thereof by Mr. Payne under date of March 5, 1945. Mr. Smith testified that he had paid the fair market value of the car and that its market value had decreased between the date he purchased it and the date of trial. He further testified that Mrs. Payne, at the time the sale was consummated, told him that Mr. Payne had signed the certificate of title in blank so that she could dispose of the car if she wanted to. Mr. Smith later sold the car to a Mrs. Hames, and assigned the certificate of title to her. He said that his reason for taking the certificate to Floyd L. Wilson for an acknowledgment was that he knew the certificate of title could not be sent to the State Department for a new title if it was not...