Wilks v. Stone
| Decision Date | 20 October 1960 |
| Docket Number | No. 7855,7855 |
| Citation | 339 S.W.2d 590 |
| Parties | Hazel WILKS, Plaintiff-Respondent, v. Bill STONE, d/b/a Barnes-Stone Chevrolet Company, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Almon H. Maus, Monett, for defendant-appellant.
Edward V. Sweeney, Monett, for plaintiff-respondent.
Replevin: Plaintiff, who is now respondent, filed her petition on May 5, 1959. She alleged that on May 4, 1959 she was the owner and entitled to possession of a 1957 Plymouth. On the ___ day of April, 1959, defendant wrongfully and without plaintiff's consent acquired possession, and still retains possession, of the automobile. On May 4, plaintiff demanded possession, which was refused. For answer defendant, now appellant, admitted possession and further pleaded that on April 13 one Larry Wilks (son of plaintiff), with approval of the plaintiff, contracted for the purchase of a 1959 Chevrolet. In pursuance of this agreement the 1957 Plymouth was delivered to the defendant as a trade-in, and it was agreed that title of the Plymouth would be assigned to the defendant. The plaintiff ratified and adopted said transaction. Thereafter Larry Wilks, as agent for and with the approval of the plaintiff, disposed of the 1959 Chevrolet. For further answer defendant charged that at the time of the 'aforesaid transaction and agreement' it was agreed defendant would make certain repairs to the Plymouth and that in pursuance of such agreement defendant made said repairs to the reasonable value of $227.80. The cost of said repairs has not been paid.
The evidence offered and admitted is as follows:
Plaintiff testified that on May 4 she was the owner of the 1957 Plymouth, this over objection of the defendant. She then introduced a certificate of title, dated May 20, 1959, showing her ownership as of that date. She said she received the certificate 'sometime in May'; that on April 13, 1959, she did not actually have the title to the 1957 Plymouth, 'not that one.' The Plymouth was purchased on February 27, 1959, and was worth approximately $2,000 on May 4, 1959. (It was stipulated that $1,295 was paid for the car when it was purchased.) Defendant took possession of the Plymouth on April 13, 1959, but this was not with plaintiff's consent, and prior to filing suit she personally made demand (and physical effort) to retake possession of the Plymouth and was refused.
On cross-examination she testified that her son, Larry Wilks, was eighteen years of age 'on the 5th of July' and that Larry was living in her home on April 13. She took possession of the Plymouth on February 27, 1959. It was in her possession until April 13, 1959, although her son Larry was driving it on that day. Larry drove this car to defendant's place of business, turned the car over to the defendant, and returned home with the 1959 Chevrolet convertible. She knew he had traded in the Plymouth on the Chevrolet convertible. She did not at that time contact the defendant or any of his employees, and one Al Higgins (salesman for the defendant) did not subsequently come to her home and discuss the transaction with her. She did 'not then' learn that her son Larry had given a 'no fund' check on the trade. She did not attempt to finance the 1959 Chevrolet (the car so traded for) at any bank or finance agency, but her son Larry did go to Joplin to obtain financing for it. She did not receive any of the proceeds from the later sale of the 1959 Chevrolet to another dealer. With that plaintiff rested.
Evidence for defendant offered and admitted was as follows:
Albert Higgins, a salesman for defendant, testified that he sold the 1957 Plymouth to Larry. The sale price was $1,295, and Larry paid for it (this last was stricken). Larry returned the Plymouth to defendant as a down payment for a new 1959 convertible. (Objection to this statement made after answer was sustained, but the answer was not stricken.) When the Plymouth was brought back in and turned over to defendant it was in need of certain repairs. It was understood defendant was to make these repairs, and repairs were made to the extent of $227.
The witness testified that subsequent to the trade he went to the home of plaintiff and discussed the transaction (the purchase of the 1959 Chevrolet and the tradein of the Plymouth) with plaintiff, but objection as to the conversation was sustained.
Don Crossland, an automobile dealer in Monett, testified that he had a discussion with Larry Wilks, and thereafter with the plaintiff, Mrs. Wilks, about buying the 1959 Chevrolet. Objection, after answer, was sustained, although the answer was not stricken, and by agreement the defendant made offer of proof hereinafter mentioned.
The defendant, W. T. Stone, testified that the 1957 Plymouth was worth $1,000 when it was traded back in.
That is substantially all the evidence defendant was permitted to introduce.
The defendant attempted to prove, by numerous separate questions to witnesses (to which objections were sustained) and by numerous separate and several offers of proof which were refused, the following facts:
The purchase of the 1957 Plymouth was negotiated by Larry Wilks, plaintiff's son. It was paid for by Larry and delivered to Larry. The physical possession and control of the car remained in Larry.
This purchase was made and done with the approval and written consent of the plaintiff (offer of the exhibit showing such written approval was refused).
On April 13, 1959, (the date of the trade for the 1959 Chevrolet) the Plymouth was in the actual possession and control of Larry.
At some time (the date is not shown) the car was, at request of Larry, actually 'titled' in the name of plaintiff. 1
Larry acquired the 1959 Chevrolet with 'consent and approval' of the plaintiff. He turned in the 1957 Plymouth on the 1959 Chevrolet as a trade-in or part payment, and plaintiff knew he had made such trade. Larry agreed at that time that the title to the Plymouth would be transferred to the defendant.
Larry told the defendant that he had plaintiff's agreement and authority to make the trade and exchange, and they did so trade.
Larry gave a check for $1,965, representing the balance of the purchase price or difference in trade between the two cars. Payment on this check was refused as 'no account.'
Albert Higgins, employee and representative of the defendant, talked with plaintiff about the trade, the terms of the trade, and the check, and plaintiff stated to him that she knew of the exchange and that 'the matter would be straightened out and consummated.'
Larry went to Joplin with the approval, consent, and authority of the plaintiff in order to obtain financing on the 1959 Chevrolet (presumably this was after the trade was made and the check for difference in purchase price had been turned down).
On or about April 20, 1959, Larry sold the 1959 Chevrolet (so received in trade) to Don Crossland, an automobile dealer in Monett, and the plaintiff consented to and approved of that disposition of such automobile.
Larry was paid $2,200 in the transaction whereby he sold the 1959 Chevrolet to Crossland.
On the occasion of that sale and prior to consummation thereof, Don Crossland, the purchaser, discussed the transaction with plaintiff and she said 'it was all right with her for the transaction to be consummated.'
Appellant's first contention is that plaintiff did not show ownership and right to possession at the time suit was filed. We agree that the plaintiff in a replevin must show right to immediate possession at the time he files suit, 2 and that a plaintiff without a properly assigned title cannot, ordinarily, maintain replevin for an automobile. 3 But the title to a previously owned automobile passes by assignment and delivery of the certificate. The new certificate to be acquired by the buyer is only evidence of title. 4 We think the possession of a certificate of title dated May 20 would be some evidence of the fact that the holder had an assigned certificate sometime prior to the time of issuance of the new certificate (otherwise the new certificate could not have been issued), but we are unable to relate it to any specific date. As to the state of title at the time the alleged trade of automobiles was made, the evidence is not entirely satisfactory as to just who took assignment of title, if it was then assigned, on February 27 and who held the assigned title on April 13 when the trade in question was made; but in view of the fact that the case is to be reversed and remanded for reasons hereinafter assigned and the parties can, if they so choose, make this clear on retrial, we pass this question without ruling as to this point. Certainly the plaintiff held title at some time prior to May 20, and for purposes of further discussion we will assume (as is probably the case, although doubtfully established) that plaintiff held title to the Plymouth on April 13 when the trade was made. The first question is whether the defendant had right to retain possession under an agreement (assuming there to have been such contract) with the owner for the purchase or taking in exchange and concurrent delivery of possession of such automobile.
It is our opinion that even though the legal title to the 1957 Plymouth had not been assigned to the defendant, if the defendant took and held possession of the automobile under a contract with the plaintiff for exchange and with promise of delivery of title, he had a 'special property interest' in the automobile. 5 And this was sufficient to defeat the replevin unless and until repudiation or rescission was made effective by the return or offer to return the 1959 Chevrolet automobile so received in exchange. As a condition of repudiation or rescission the one who repudiates or rescinds is bound, except in certain extraordinary circumstances not here involved, to return the articles which he received in the transaction. 6
The principal issue and dispute is whether resp...
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