Yahlem Motor Co. v. McCord

• Decision Date: 04 October 1927
• Docket Number: No. 19864.,19864.
• Citation: 299 S.W. 49
• Parties: YAHLEM MOTOR CO. v. McCORD
• Court: Missouri Court of Appeals

299 S.W. 49

YAHLEM MOTOR CO. v. McCORD

No. 19864.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action in replevin by the Yahlem Motor Company against Clara McCord and the Modern Auto Repair & Reconstruction Company, wherein defendant McCord counterclaimed. Judgment in the justice court for plaintiff on its claim, and for defendant McCord on her counterclaim. Defendants appeal to the circuit court. Judgment for defendants, and plaintiff appeals. Judgment as to defendant Modern Auto Repair & Reconstruction Company affirmed. Judgment as to defendant McCord reversed, and cause remanded, with directions.

Taylor, Chasnoff & Willson, Harry F. Russell, and James V. Frank, all of St. Louis, for appellant.

N. Murry Edwards, of St. Louis, for respondents.

Bert F. Fenn, of St. Louis, for respondent McCord.

BENNICK, C.

This is an action in replevin for the possession of an automobile sold by plaintiff to defendant McCord. The action originated in a justice's court in the city of St. Louis by the filing therein by plaintiff on September 8, 1924, of a statement, alleging that plaintiff was lawfully entitled to the possession of a certain automobile of the value of $485; that the same was wrongfully detained by defendant; that the property had been injured; and that, for the taking and detention of the same and for all injuries thereto, plaintiff had been damaged in the sum of $50. Plaintiff prayed judgment for the recovery of the automobile, and for the sum of $50 as damages for the taking and detention thereof.

Defendant McCord filed an answer, denying that plaintiff was entitled to the possession of the automobile, or that the same had been wrongfully detained. For further answer, she alleged that on April 1, 1924, plaintiff had offered to sell her the automobile for the sum of $850, and had warranted the same to be in first-class condition, and a 1922 mode; that, relying upon such warranty and representation, she had agreed to purchase the automobile, and had paid the sum of $245 on account, and had agreed to pay thereafter the sum of $12.50 a week until the total purchase price had been paid; that the automobile was not a 1922, but a 1920, model, and was in such bad condition by reason of a number of defects that it could not be operated; that the reasonable cost of repairs to said automobile was $350; that for expenses and repairs to the automobile, she had already paid out the sum of $149; that she was entitled to the possession of the automobile; and that she had been damaged by the wrongful taking and detention thereof in the sum of $500. She prayed judgment that the automobile be returned into her possession, or that she recover the sum of $480, which was the value thereof at the time it was taken by plaintiff, together with the sum of $500 as damages.

Defendant Modern Auto Repair & Reconstruction Company answered, denying generally the allegations in plaintiff's petition, and stating that on August 23, 1924, defendant McCord, with the knowledge and consent of plaintiff, had delivered the automobile to it; that it had thereupon entered into a contract with defendant McCord to make certain repairs upon the automobile of the value of $350; that up to the time the automobile was taken from its possession, it had furnished labor, materials, and repairs to the reasonable value of $90; that plaintiff had consented to this defendant making such repairs. This defendant prayed that it have possession of the automobile, and that it be granted a lien thereon in the sum of $90.

After a trial, the justice rendered a judgment in favor of plaintiff and against both defendants for the possession of the automobile, but in favor of defendant McCord and against plaintiff on her counterclaim in the sum of $100, and further denied a lien to defendant Modern Auto Repair & Reconstruction Company.

From such judgment both defendants appealed to the circuit court; wherein, in a trial de novo, the jury found in favor of both defendants on plaintiff's cause of action, and that defendant McCord was entitled to the possession of the automobile, which was found to be of the value of $850. The jury assessed the damages of defendant McCord for the wrongful detention by plaintiff of the automobile at the sum of $500, and found that defendant Modern Auto Repair & Reconstruction Company had established a lien thereon to the extent of $90. From the judgment rendered on such verdict, plaintiff has duly appealed.

Plaintiff's evidence was to the effect that the automobile in question was sold to defendant McCord on April 1, 1924, for the price of $850, under the usual guaranty for 30 days, and that at the time of the sale the car was in good mechanical condition. Total initial payments in the sum of $245 were made, and on April 19, 1924, a chattel mortgage was executed in the sum of $655, which represented a balance of $605 due on the sale price of the automobile, and $50 for insurance. Payments were to be made thereafter at the rate of $12.50 a week.

The mortgage provided, among other things, that upon default in any weekly payment, or in the event that the mortgagor should fail to perform any of the covenants contained in the mortgage, as, for instance, the covenant against permitting a lien to attach to said automobile, or that the mortgagee should deem the debt or security insecure, such mortgagee might, at its option and without notice, foreclose the mortgage and immediately take possession of the automobile.

Plaintiff admitted that it was advised before the present action was instituted that defendant Modern Auto Repair & Reconstruction Company had claimed a lien upon the automobile and had refused to surrender possession of the same without litigation. The automobile was taken from such defend...