Time Plans, Inc. v. Wornall Bank, 24636

• Decision Date: 05 June 1967
• Docket Number: No. 24636,24636
• Citation: Time Plans, Inc. v. Wornall Bank, 419 S.W.2d 491 (Mo. App. 1967)
• Parties: TIME PLANS, INC., a Corporation, Appellant, v. WORNALL BANK, a Corporation, and Carl Goodhue and Mrs. Carl Goodhue, Respondents.
• Court: Missouri Court of Appeals

Page 491

419 S.W.2d 491

TIME PLANS, INC., a Corporation, Appellant, v. WORNALL BANK, a Corporation, and Carl Goodhue and Mrs. Carl Goodhue, Respondents.

No. 24636.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Motion for Rehearing and/or Trasfer to Supreme Court Denied

Oct. 2, 1967.

Application to Transfer Denied Nov. 13, 1967.

John R. Whitsitt, Kansas City, for appellant.

Donald K. Hoel, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for Wornall Bank, respondent.

Shockley, Reid & Koger, by Jim T. Reid, Kansas City, for Carl Goodhue and Mrs. Carl Goodhue, respondents.

MAUGHMER, Commissioner.

Plaintiff's suit for damages, both actual and punitive, is in two counts. Count I is based upon alleged conspiracy and Count II upon conversion. After the evidence had been heard the court directed a verdict for defendants on both counts. Plaintiff has duly appealed. The amount of recovery sought was $5,808 actual and $5,000 as punitive damages. Therefore appellate jurisdiction rests with this court.

The present controversy grew out of various transactions concerning a Ferrari automobile. Ferrari automobiles are built by an Italian corporation, are sports or racing cars, and are prized chiefly by those interested in antique vehicles.

The plaintiff, Times Plans, Inc., is an automobile finance company domiciled in Missouri and located in Kansas City. The defendant Wornall Bank is a general banking institution in Kansas City, Missouri. The other defendants, Carl and Mrs. Carl Goodhue, are individuals living in this city.

We shall endeavor to present the pertinent facts in chronological order. Mr. Goodhue is a school teacher, who had a hobby of buying, rebuilding and selling used automobiles, especially those of the antique or classic types. For many years he had been a customer and borrower at the Wornall Bank. In the fall of 1961, he read in an automobile magazine that a Ferrari (described as a 1954 model) was being offered for sale by a Mr. C. B. Johnson, who lived in Colorado. He communicated with Mr. Johnson, met him in Sterling, Kansas, and on October 14, 1961, bought the Ferrari and received an assignment of the Colorado title. Mr. Goodhue testified that he 'misplaced the title', but he got in touch with the seller, who procured and transmitted to him a duplicate Colorado title. Mr. Goodhue later located the original title. The Colorado certificate described the vehicle as a Ferrari, 1952, Model 340, a roadster, with Motor #0140A.

On November 3, 1961, Mr. Goodhue signed a chattel mortgage for a debt of $2,819.04 to the Wornall Bank covering a 1959 Opel, a 1955 Plymouth, and this Ferrari, but therein described it as a 1954 Ferrari, Motor #0140A. This mortgage was never recorded or filed and bears the stamp mark 'canceled by renewal'. Thereafter Mr. Goodhue arranged to sell the Plymouth and purchase a 1959 Chevrolet. He again financed through the Wornall Bank and on February 7, 1962, executed to that institution a new chattel mortgage, which covered the 1959 Opel, the recently purchased 1959 Chevrolet and the Ferrari, which was again identified as a 1954 Ferrari, Motor #0140A. The indebtedness on this occasion was $3,674.88. Plaintiff in its brief says this particular mortgage was never filed in the office of the Recorder in Kansas City, Missouri, but that it was filed in the Recorder's office in Independence, Missouri on July 17, 1963. Both of these cities are in Jackson County, Missouri. The certificate attached to the exhibit (photostat of the chattel mortgage) states that it was so filed on July 17, 1963, but there appears further on the exhibit the following stamp:

'Filed this day and date

Feb. 12, 1962, 10 A.M.

Nathan Scarritt, Recorder

By Peg Allen, Deputy'.

The next occurrence was the sale of the Ferrari by Mr. Goodhue to a Mr. Wayne Joplin, a resident of Oklahoma. The Colorado certificate of title, executed in blank by C. B. Johnson was delivered to Mr. Joplin by Mr. Goodhue, thereby 'jumping' himself in the chain of title. It did not list any indebtedness as outstanding against the automobile. The Wornall Bank was unwilling to release Goodhue on the obligation even though the new purchaser, Wayne Joplin, assumed it in full. There is some dispute as to just what Mr. Joplin paid for the Ferrari, but it was sold and delivered to him. There was introduced in evidence a third chattel mortgage to Wornall Bank with promissory note attached for $3,674.88 and covering a 1952 Ferrari, Motor #0140A, with both the promissory note and the chattel mortgage purporting to be signed by C. D. Goodhue and Wayne Joplin. Mr. Goodhue testified that they both signed it. Mr. Joplin testified that he did not sign it although 'it looked like his signature' and he admitted making 10 or 11 monthly payments of $153.12 each to the Wornall Bank on this indebtedness. This chattel mortgage was never filed of record.

Thereafter, on September 4, 1962, the State of Oklahoma issued to Mr. Wayne Joplin a certificate of title to a '1961 Ferrari roadster, Motor #0140A'. Mr. Joplin testified that he procured this 1961 certificate by filing the 1952 Colorado certificate and some affidavits certifying as to repair and replacement work which had been done on the automobile. Then on December 14, 1962, Wayne Joplin signed a promissory note and chattel mortgage in favor of plaintiff Time Plans, Inc. for the sum of $6,336, and covering a 1961 Ferrari, Motor #0140A. He used the Oklahoma title certificate describing a 1961 Ferrari to procure this loan. Mr. Joplin made some payments on this indebtedness but at the time suit was filed, the sum of $5,808 was still due. This is the sum named by plaintiff in the petition as its actual damages. This mortgage was filed in Oklahoma City and in Benton County, Missouri, where Joplin said he lived.

After making eleven payments (Wornall Bank records show this) Mr. Joplin's check for the twelfth payment was returned marked 'Insufficient funds' and Wornall Bank called on Goodhue for payment. The defendants, Mr. and Mrs. Goodhue 'took up' or paid off the balance of this debt by refinancing and pledging other and additional collateral on May 15, 1963. The Wornall Bank thereupon assigned the original note and mortgage, purportedly signed by Goodhue and Joplin, to the defendant Mrs. Carl Goodhue and disclaims any interest whatever in the matter after May 15, 1963.

After the assignment of the chattel mortgage and note to her, Mrs. Goodhue instituted a replevin action in Jackson County, Missouri to recover possession of the Ferrari. Aided by officials of Wornall Bank, who had contacts with automobile 'locaters', the Ferrari was located in Mangum, Oklahoma. Mr. Goodhue went there, repossessed the vehicle and returned it to Missouri. He testified that its transmission was out, it had a bullet hole in it and the cylinder head was cracked; that he spent $1500 and his time in making repairs, procured a repossessed certificate of title from the State of Missouri, and then sold the Ferrari for approximately $1800. It is undisputed that all of these transactions had to do with one and the same Ferrari automobile, Motor #0140A. The Colorado title was for a 1952 Ferrari. This particular model was not built after 1954. It could not have been a 1961 product. It is really undisputed that the automobile was a 1952 model, even though it is sometimes referred to as a 1952, 1954 and 1961 Ferrari.

Mr. Dee White, Vice-President of the Wornall Bank, Mr. Hughes Barton, President, and Mr. R. M. Welton, Vice-President of Time Plans, Inc. testified as to the factual occurrences just related. Mr. Barton and Mr. White had telephone conversations about these matters during May, June and July of 1963. At that time each knew of the other's mortgage. White advised that the Ferrari had been located in Oklahoma and asked Barton to join in criminal proceedings against Wayne Joplin. Barton refused. Barton said his company paid one-half of the $50 paid to the Oklahoma sheriff for his help in the recovery, and that White promised to make the car available to plaintiff after it had been repossessed. In August, 1963, Mr. White told plaintiff's officers that the Wornall Bank was no longer concerned in the matter; that plaintiff had not cooperated, and that he, Mr. White, would furnish no further information. Mr. Welton testified that he told Mr. White that plaintiff wanted its debt balance of $5,808, or wanted possession of the automobile, and were expecting one or the other from the Wornall Bank. He said Mr. White finally told him: 'The hell with you'. Mr. Welton testified further that they 'tried to contact Mr. Goodhue' and that Mr. Goodhue finally called him by telephone. He said Mr. Goodhue stated that 'he did have the automobile, but wouldn't tell us where it was and stated that he had a clear title'. Mr. Goodhue testified that he sold the car to Wayne Joplin for $3500; that after he repossessed it in Oklahoma he spent $1500 in repair and then sold it for $1800. Plaintiff has never instituted any legal proceedings to (1) recover possession of the Ferrari or (2) except for the instant suit, any action to recover damages or relief of any kind.

Count I of plaintiff's petition alleges: Goodhue failed to register the Colorado title in Missouri; Wornall Bank procured a chattel mortgage, well knowing Goodhue had no valid certificate of title; Wornall Bank allowed and required Wayne Joplin to alter the note and mortgage by adding his name thereto; Mrs. Goodhue filed a replevin suit, alleging she was owner of the said note and mortgage, and said Wornall Bank cooperated and conspired with the Goodhues in all of these things for the purpose of hindering and defrauding plaintiff out...