Stuyvesant Ins. Group, Inc. v. Anderson

• Decision Date: 28 January 1977
• Docket Number: No. 9799,9799
• Citation: 547 S.W.2d 171
• Parties: STUYVESANT INSURANCE GROUP, INC., Plaintiff-Appellant, v. Don M. ANDERSON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 171

547 S.W.2d 171

STUYVESANT INSURANCE GROUP, INC., Plaintiff-Appellant, v. Don M. ANDERSON, Defendant-Respondent.

No. 9799.

Missouri Court of Appeals, Springfield District.

Jan. 28, 1977.

Motion for Rehearing or Transfer Denied Feb. 18, 1977.

Charles M. Wesley, Waynesville, for plaintiff-appellant.

Wm. C. Morgan, Arthur B. Cohn, Waynesville, for defendant-respondent.

Before STONE, P. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

Plaintiff Stuyvesant Insurance Group attempted to sell a previously registered house trailer to defendant Don M. Anderson. Payment was made conditional upon plaintiff's tendering a "clear title" to the trailer. Because no certificate of title was seasonably presented, defendant repudiated the sale. Plaintiff thereupon brought this action in three counts. Count I, though it is described as an action on a "countermanded check", was submitted as an action for the purchase price of the trailer. Defendant filed a counterclaim directed to this count. The jury to which the claim and counterclaim were submitted found for the defendant upon the claim and for the plaintiff on the counterclaim. Counts II and III were dismissed by the trail court. Plaintiff now appeals.

In this court the plaintiff has briefed and argued seven points of trial error in this court. The trial errors are immaterial if plaintiff failed to make a submissible case. Hoock v. S.S. Kresge Co., 230 S.W.2d 758, 761 (Mo. banc 1950); Osborn v. McBride, 400 S.W.2d 185, 188 (Mo.1966); Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50, 52 (Mo.App.1974).

Plaintiff insured a house trailer described as a 1970 Century Mobile Home. At sometime before December 17, 1970, the trailer was repossessed by the owner's mortgagee and stored on a lot near Waynesville. On December 17, 1970, the trailer was stolen. It was later found "alongside the highway", abandoned and damaged. Plaintiff was presented with a claim for the damage to the trailer. The claim was assigned to an adjuster in Waynesville with instructions to adjust the claim with the mortgagee and dispose of the salvage. Defendant bid on the salvage and his bid was accepted. On May 14, 1971, defendant issued his check in the amount of his bid, made payable to plaintiff. On the same day defendant's adjuster delivered the damaged trailer to the defendant. Plaintiff admittedly had no title on May 14, 1971, and admittedly tendered no properly assigned certificate of title until October 2, 1972, perhaps later. Both the original and repossession titles were issued by the Missouri Department of Revenue.

Section 301.210 (4), RSMo 1969, V.A.M.S., provides:

"It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void." (emphasis ours)

The facts of this case bring the transaction squarely within the interdiction of the statute. We need not, and do not consider the necessity of registering and licensing house trailers as new vehicles. The fact in this case is that the trailer had been registered and licensed by the original owner, and consequently the attempted sale was void and unenforceable. Greer v. Zurich Insurance Co., 441 S.W.2d 15, 25-26 (Mo.1969); Bank of Jasper v. Langford, 459 S.W.2d 97, 100 (Mo.App.1970); McIntosh v. White, 447 S.W.2d 75, 80 (Mo.App.1969). Therefore, plaintiff made no submissible case on Count I of its petition, and this is true whether Count I is regarded as an action for the purchase price or an action upon the check. McIntosh v. White, supra, 447 S.W.2d at 80.

In Count II plaintiff...