Wilson v. National Bond & Investment Co.

• Decision Date: 04 February 1932
• Docket Number: No. 4962.,4962.
• Citation: 46 S.W.2d 922
• Court: Missouri Court of Appeals
• Parties: WILSON v. NATIONAL BOND & INVESTMENT CO.

46 S.W.2d 922

WILSON v. NATIONAL BOND & INVESTMENT CO.

No. 4962.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Rehearing Denied March 11, 1932.

Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.

"Not to be officially published."

Action by W. L. Wilson against the National Bond & Investment Company. From a judgment for plaintiff, defendant appeals.

Reversed.

A. B. Holmes, of Rolla, and M. E. Morrow, of West Plains, for appellant.

Homer Rinehart, of West Plains, for respondent.

COX, P. J.

This suit was filed in Howell county, and went to Phelps county on change of venue.

This is an action for damages based on an alleged libelous letter written by an agent of defendant. Upon a trial by jury, plaintiff was awarded damages in the sum of $750, and defendant appealed.

The plaintiff had lived at Kansas City, and while there purchased an automobile and gave a chattel mortgage to the seller to secure payment of part of the purchase money. The note and chattel mortgage were transferred to defendant. Plaintiff had moved from Kansas City to Texas, and while in Texas had sent back to his attorney at Kansas City the money to pay the balance due on the note then owing to defendant. This payment was made, but by some oversight on the part of defendant's agent it was not noted on the books of defendant. The defendant had tried to locate plaintiff and the car after he left Kansas City, and finally learned that a license for the car had been issued in Missouri to one Della Lundquist, a resident of Mountain View in Howell county. Upon securing that information, the following letter, which is the basis of this action, was written by an agent of defendant, to wit:

"Della Lundquist, Mountain View, Mo.

"Dear Madam: In checking the records of the Secretary of State's office Jefferson City, we find that a Hudson Sedan, Motor 493457, serial 7590 is registered in your name.

"This car was mortgaged to us under date of November 28, 1927, by E. E. and W. L. Wilson, then residing at 6031 E. 11th, this city. The balance due on our mortgage is $140.00, together with interest at 8 per cent since that time. Mr. and Mrs. Wilson left this community not advising us of their destination. We have never been able to locate them and have just recently been able to find out that the car covered by our mortgage is in your possession.

"We therefore make demand upon you at this time for the balance due us of $140.00 plus interest since November 28, 1927. We would appreciate your prompt attention to this matter inasmuch as the signed note of Mr. Wilson calls not only for interest but attorney fees. Not hearing from you in a reasonable length of time, we will turn this matter over to our attorney which will, of course, incur expense, which will also be payable under the terms of our note and mortgage. We would appreciate a prompt reply from you.

                  "Thanking you, we are
                    "Yours very truly
                                          "B. J. Port
                  "B. J. Port, Manager, Kansas City Office."
                

This letter is copied in full in the petition, and was followed by allegations that defendant intended thereby to charge that plaintiff had been guilty of a felony by having sold an automobile on which there was a chattel mortgage without the consent of the mortgagee and without notifying the purchaser of the existence of the mortgage. A demurrer to this petition was filed on the ground that it did not state a cause of action. This was overruled, and defendant then filed an answer. A reply was filed, and the trial proceeded.

At the beginning of the trial the defendant objected to the introduction of any evidence on the ground that the petition wholly failed to state a cause of action. This was overruled.

A defendant may object to the introduction of evidence on the ground that the petition wholly fails to state a cause of action and in that way save his point after he has answered in the case. East St. Louis Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 702, 142 S. W. 253; Warner v. Oriel Glass Co., 319 Mo. 1196, 1205, 8...