Universal Credit Co. v. Uhri, 23262.

• Decision Date: 02 February 1937
• Docket Number: No. 23262.,23262.
• Parties: UNIVERSAL CREDIT CO. v. UHRI.
• Court: Missouri Court of Appeals

101 S.W.2d 501

UNIVERSAL CREDIT CO. v. UHRI.

No. 23262.

St. Louis Court of Appeals. Missouri.

February 2, 1937.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by the Universal Credit Company against William Uhri, Jr., wherein defendant filed a counterclaim. Defendant took an involuntary nonsuit upon his counterclaim. From an adverse judgment plaintiff appeals.

Affirmed.

Francis L. Kane, of St. Louis, for appellant.

Charles L. Long, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover $1,536.49, the balance alleged to be due on an indebtedness evidenced and secured by a chattel mortgage.

The petition alleges that on June 29, 1931, defendant purchased from the Ford Motor Company, a corporation, one new 1931 Model Lincoln five-passenger coupé, for the price and sum of $5,075.59; that defendant was allowed $1,750 on his old automobile, which was taken as a down payment; that defendant executed his mortgage covering said coupé, wherein he agreed to pay the balance of $3,325.59 in six months thereafter; that afterwards said Ford Motor Company, for value, assigned said chattel mortgage to plaintiff; that defendant was allowed by plaintiff a credit on said note of $39.10 as a refund of insurance; that on January 21, 1932, plaintiff, under the terms of said mortgage, repossessed the said coupé, for failure to pay the unpaid balance of $3,286.49, which fell due on December 29, 1931, and sold said coupé for $1,750, for which due credit was given defendant on said mortgage, leaving a balance of $1,536.49 due and unpaid.

The answer alleges fraud in procuring the execution of said mortgage, and further alleges that on February 4, 1932, plaintiff wrongfully sold or disposed of said Lincoln coupé at and for the price and sum of $1,750, and that said price was approximately one-half of the fair and reasonable value of said coupé and less than the price for which said coupé might have been sold at a fair and open sale.

And by way of a counterclaim the answer alleges the wrongful conversion of said coupé by plaintiff to defendant's damage in the sum of $3,500.

The cause was tried to a jury. At the conclusion of the whole case plaintiff requested the court to give to the jury the following instruction: "The court instructs the jury that under the law and the evidence you must find for plaintiff and against the defendant." The court refused to give this instruction, and gave to the jury at plaintiff's request an instruction directing a verdict for plaintiff on defendant's counterclaim. Defendant thereupon took an involuntary nonsuit as to his counterclaim. The jury returned a verdict in favor of defendant on plaintiff's cause of action. Judgment was given accordingly, and plaintiff appeals.

The mortgage in suit, which is dated June 29, 1931, recites the purchase by defendant from the Ford Motor Company of the Lincoln coupé described in the petition at the price of $5,075.59, and the payment thereon of $1,750 on delivery, leaving a balance of $3,325.59, payable six months after date. It gives the mortgagee the power, upon default in the payment of the mortgage, to repossess the coupé and to sell it at either public or private sale, with or without notice to the mortgagor, and with or without having the coupé at the place of sale, and upon such terms and in such manner as the mortgagee may determine, and gives the mortgagee the right to purchase the coupé at any public or private sale, the proceeds of the sale, less expenses, to be applied to the payment of the mortgage, and gives the mortgagee's assignee all the rights and powers of the mortgagee.

Indorsed on the mortgage appears an assignment...