Stephen Burns, Inc. v. Trantham
| Decision Date | 03 September 1957 |
| Docket Number | No. 29704,29704 |
| Citation | 305 S.W.2d 66 |
| Parties | STEPHEN BURNS, Inc., a Corporation (Plaintiff), Appellant, v. Homer TRANTHAM (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Meyer, Hoester & Coleman, by Hal B. Coleman, Clayton, for appellant.
Louis S. Czech, Clayton, for respondent.
WOLFE, Commissioner.
This is an action in replevin whereby the plaintiff replevined, with bond, an automobile from Homer Trantham, the defendant. Trantham asserted ownership and title to the automobile and counterclaimed for its value and damages. There was a verdict for the defendant in the total sum of $3,500. From the judgment on the verdict plaintiff prosecutes this appeal.
There appears to be but little dispute about the facts which relate to the title to the car. The plaintiff corporation was engaged in selling new Mercury automobiles and Ford products. On December 24, 1953, the company received from the Lincoln-Mercury Division of the Ford Motor Company a 1954 model, four-door Mercury sedan, which is the car here in question. The plaintiff corporation had the automobile in possession until January 27, 1954, when a person by the name of Luther Townsend agreed to buy the car for $2,559.
Townsend gave the plaintiff corporation a check for the agreed price of the car and signed a filled-in printed form captioned 'Retail Buyer's Order', which stated that he agreed to purchase for cash a Mercury car of a certain motor number and the bottom of the form was initialed by an authorized salesman for the plaintiff next to the printed word 'Accepted'. A copy of this 'Retail Buyer's Order' was given to Townsend and he was also given possession of the car. The check that he gave to the plaintiff was deposited for collection but was returned by the bank marked insufficient funds. Shortly after he obtained possession of the car Townsend made application to the Bureau of Motor Vehicles of the State of Indiana for a certificate of title. He supported his application by filing with that bureau a copy of the 'Retail Buyer's Order'. This bore a stamp which read, 'Paid Stephen Burns, Inc.' and the date of January 27, 1954.
The president of the plaintiff corporation testified that the stamp was one used by his company but that it was not used for the sale of cars but was kept on a desk in its service department.
In addition to the stamp the 'Retail Buyer's Order' also had written upon it: The president of the plaintiff corporation also testified that no one by the name of Eden had ever been employed by its company.
A certificate of title was issued to Luther Townsend by the Bureau of Motor Vehicles of the State of Indiana. The car was then sold and Townsend's Indiana title transferred to the Pagedale Motors, Inc., a used car company located on Page Avenue in St. Louis, Missouri.
On February 9, 1954, Homer Trantham, the defendant, who resided in St. Louis, saw the Mercury on the sales lot of Pagedale Motors, Inc. At the time Trantham owned a 1952 Chevrolet and was interested in purchasing another car. He agreed to trade his Chevrolet to the Pagedale Motors, Inc., and pay an additional $1,500 for the Mercury. He made a loan with the Easton-Taylor Trust Company of St. Louis for $1,500 and paid this amount to the Pagedale Motors, Inc., and gave them his Chevrolet. He took possession of the Mercury automobile and received a Missouri certificate of title in his name from the Department of Revenue of the State of Missouri.
Trantham used the car to drive to and from his work until October 9, 1954, when it was taken from him by the writ of replevin here in litigation. At the time the car was replevined he had run it for about twelve thousand miles. There was no public transportation from his home to the place of his employment and after his car was taken from him he used a taxicab on two occasions at a cost of $5 a trip. He then arranged to ride for $3 a week. This continued for 8 weeks. After that he bought a 1941 Plymouth for $100.
During this period of time Stephen Burns, Inc., the plaintiff, was attempting to get Luther Townsend to make good his check and it was also attempting to locate the car. The company succeeded in getting payments from Townsend totaling $1,500 or $1,600 and it eventually located the automobile. After having replevined the car the company sold it.
As to the value of the automobile at the time it was replevined there was testimony that its market value was from $2,200 to $2,300. Upon the foregoing evidence the jury returned a verdict for the defendant finding that the reasonable value of the automobile at the time of its taking was $2,200 and that the defendant was damaged by the taking in the sum of $1,300.
The plaintiff contends that the court erred in refusing to sustain its motion for a directed verdict. It is asserted that no title passed from Stephen Burns, Inc., to Luther Townsend and that the subsequent purchaser therefore consequently took no title. We are cited to two cases, Hoshaw v. Fenton, 232 Mo.App. 137, 110 S.W.2d 1140, and Crawford v. General Exchange Ins. Corp., Mo.App., 119 S.W.2d 458, but both of these have to do with the sale of motor vehicles which have been registered in the state. Under Section 301.210 RSMo 1949, V.A.M.S., such sales are void unless the certificate of ownership for the registered car is assigned to the purchaser at the time of the sale. This does not apply to an automobile such as the one here in question, for it was a new car that had no registration of ownership. The transaction between Townsend and Stephen Burns, Inc., was therefore not void by reason of the statute. Mallory Motor Co. v. Overall, Mo.App., 279 S.W.2d 532; Vetter v. Browne, 231 Mo.App. 1147, 85 S.W.2d 197.
The plaintiff also relies upon the case of Hickerson v. Con Frazier Buick Co., Mo.App., 264 S.W.2d 29. This case is factually different in several respects from the one before us. In it the seller took a check for the full price of the automobile. The seller executed a bill of sale and the vendor's certificate on the prescribed form for a Missouri certificate of title and gave these with possession of the automobile to the purchaser. The purchaser mailed the application for title to the Department of Revenue the day following. On that same day the purchaser died and the seller tendered the check to the decedent's administratrix and requested the return of the automobile. This was refused and the seller took the automobile. The suit was brought by the administratrix who claimed the automobile as an asset of the estate. The court held that the suit for conversion brought by the administratrix would not lie as the evidence failed to establish that title had passed to the deceased. Payments not having been made, the sale was not complete. The court pointed out that acceptance of a check does not constitute absolute payment. It is well established that where a sale is for cash, payment is not made if a check given in payment is dishonored. Rettinghouse v. Krey Packing Co., Mo.App., 200 S.W.2d 584; Griffin v. Priest, Mo.App., 137 S.W.2d 685; Lewis v. James McMahon & Co., 307 Mo. 552, 271 S.W. 779. It will be seen, however, that the facts in Hickerson v. Con Frazier Buick Co., supra, differ from those under consideration, in that no third party was involved, as the administratrix stood in the same position as the deceased, and neither was there any element of estoppel or waiver which appears to be present under the facts before us.
Since the question of a Missouri certificate of ownership was not involved in the original sale from the Burns Company to Townsend, we have only to consider whether or not title...
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...'for which a certificate of ownership has been issued,' is governed by § 301.210 (heretofore quoted marginally). Stephen Burns, Inc. v. Trantham, Mo.App., 305 S.W.2d 66, 69; Vetter v. Browne, 231 Mo.App. 1147, 1150, 85 S.W.2d 197, 198. It has been repeatedly held, by reason of § 301.210, th......
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...the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.'5 Stephen Burns, Inc. v. Trantham, Mo.App., 305 S.W.2d 66, 69(1); Inland Discount Corp. v. St. Louis Auto Auction Barn, Mo.App., 303 S.W.2d 185, 187(1); Mallory Motor Co. v. Overal......
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