Universal Credit Co. v. Enyart

• Decision Date: 09 November 1936
• Docket Number: No. 18683.,18683.
• Citation: 98 S.W.2d 120
• Parties: UNIVERSAL CREDIT COMPANY, A CORPORATION, APPELLANT, v. RITCHIE L. ENYART, RESPONDENT.
• Court: Missouri Court of Appeals

98 S.W.2d 120

UNIVERSAL CREDIT COMPANY, A CORPORATION, APPELLANT, v. RITCHIE L. ENYART, RESPONDENT.

No. 18683.

Kansas City Court of Appeals. Missouri.

November 9, 1936.

Appeal from Circuit Court of Gentry County. — Hon. Thomas A. Cummins, Judge.

REVERSED AND REMANDED (with directions).

J.W. McKnight for appellant.

F.P. Stapleton for respondent.

BLAND, J.

This is an action upon what is termed a "mortgage note contract," signed by the defendant as maker. The execution of the instrument was admitted by the pleadings, the defense being a lack of consideration. The case was tried before a jury, resulting in a verdict in favor of the defendant. Plaintiff has appealed.

The facts show that in the years of 1933 and 1934 one J.L. Enyart, now deceased, was a retail dealer of Ford automobiles in the city of McFall carrying on his business as the J.L. Enyart Motor Company; that in the latter part of 1933 he purchased an automobile from the Ford Motor Company and the same was shipped from Kansas City by it to him. It appears that Enyart did not pay cash for cars sold and delivered to him by the Ford Motor Company but gave mortgages on them on what is known as the "Floor Plan;" that on December 30, 1933, he gave to the Ford Motor Company a chattel mortgage in the sum of $950, upon the vehicle in question, being the balance due upon the car. This mortgage was duly sold and assigned by the Ford Motor Company to plaintiff at Kansas City. Thereafter it was represented to plaintiff, whose office was in Kansas City, that on April 12, 1934, the car had been sold to Ritchie L. Enyart by the defendant, J.L. Enyart, and that the car had been sold on the "salesman's plan for use as a demonstrator." On the 12th day of April, 1934, the defendant executed the note in suit and chattel mortgage on the car to J.L. Enyart, the note securing the payment of the balance of the purchase price of $565.32, payable in eleven monthly installments of $25 each with a balance of $290.32 coming due twelve months after the date of the instrument. This instrument stated that defendant had purchased from J.L. Enyart the automobile "delivery and acceptance of which is hereby acknowledged" by the defendant. The note and mortgage on its face disclosed that it was contemplated that it would be assigned to the plaintiff, Universal Credit Company, and, in fact, the note and mortgage were duly assigned to the plaintiff by Enyart on April 14, 1934.

In connection with the execution of this instrument J.L. Enyart executed a writing headed "Dealer's Work Sheet," in which it was stated that the car had been sold for $786.32 on "the salesman's plan" for use as a demonstrator; that the amount of the down payment was $221; that the balance to be paid was $565.32. On the back of the work sheet appeared a form headed "Purchaser's Statement," which was duly filled out and executed by the defendant on the 12th day of April, 1934. This statement was addressed to Enyart and the Universal Credit Company, plaintiff herein, and stated that the defendant, the purchaser of the car, was employed by Enyart Motor Company as saleslady and bookkeeper and had been so employed for twenty years; that her monthly income was $75 and further stated that the undersigned "warrants the truth and accuracy of the foregoing information which is offered for the purpose of obtaining credit from the source first named herein," (meaning Enyart and the plaintiff) and authorized the Universal Credit Company (plaintiff) to purchase fire and theft insurance on the car. The statement was signed by the defendant and witnessed by J.L. Enyart. Plaintiff, on April 14, 1934, purchased the note and mortgage, paying therefor the sum of $520.52. The chattel mortgage was duly assigned to the plaintiff and plaintiff received the dealer's work sheet and the purchaser's statement. Three payments were made upon the note of $25 each and no further payments were made, resulting in this suit. There is a dispute as to whether defendant made any of these payments.

A letter, addressed to plaintiff, dated August 16, 1934, and purporting to have been signed by the defendant, was introduced in evidence by plaintiff. This letter was upon a form furnished by plaintiff and was in respect to insurance upon the car. It gave a description of the car and number and referred to the "purchase" of the car by the defendant. Defendant refused to say positively that she signed this letter. She said the signature "resembled" hers. Plaintiff introduced evidence tending to show that it was her signature.

Plaintiff as a part of its case in chief introduced the written evidence referred to supra, upon which it relied for estoppel. Thereafter, over the objection of plaintiff, defendant was permitted to testify that she did not buy the car and that she did not receive it, did not use it and received nothing for the giving of the instrument sued upon. She testified that she was the wife of J.L. Enyart but was not employed by him or the Enyart Motor Company and received no salary but "assisted" her husband at his place of business for a number of years; that she was neither a bookkeeper nor a saleslady; that her duties were keeping the place of business clean and that she took care of the labor tickets and that she wrote checks for the company "once in a while;" that she had neither demonstrated nor sold a car.

There is no evidence or contention that plaintiff was informed otherwise as to defendant's connection with the Enyart Motor Company than was represented in the purchaser's statement or that she actually purchased the car as stated in the chattel mortgage and purchaser's statement.

The car in question, after the execution of the instrument sued upon, was used as a demonstrator by the Enyart Motor Company at McFall and was sold by it through one Adams, a salesman for it, on or about June 12, 1934 to one Orville F. Gillespie, of Effie, Minnesota, and was apparently taken to that state.

Estoppel was pleaded...