Zemlick v. A. B. C. Auto Sales & Investment Co.

• Decision Date: 31 May 1933
• Docket Number: No. 22488.,22488.
• Parties: ZEMLICK v. A. B. C. AUTO SALES & INVESTMENT CO.
• Court: Missouri Court of Appeals

60 S.W.2d 649

ZEMLICK v. A. B. C. AUTO SALES & INVESTMENT CO.

No. 22488.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Rehearing Denied June 13, 1933.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by Joe Zemlick against the A. B. C. Auto Sales & Investment Company. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed, and cause remanded, with directions in accordance with opinion.

Harry F. Russell, of St. Louis, for appellant.

Samuel White and Hope & Hope, all of St. Louis, for respondent.

BECKER, Presiding Judge.

This is a suit for conversion of an automobile. Plaintiff recovered judgment against the defendant in the sum of $457, of which $207 was for actual damages, and $250 for punitive damages. Defendant appeals.

Plaintiff bought a used automobile from the defendant company on a basis of deferred payments. For the purpose of this opinion we may state that there is testimony to the effect that it was the intention of the parties to the action that plaintiff was to give his note for the unpaid balance of the purchase price, secured by a chattel mortgage on the automobile in question; that according to the defendant's evidence the sale was contingent upon its being able to discount plaintiff's note, secured by said chattel mortgage, with an automobile finance company; that it is a rule of automobile finance companies to discount notes given for the purchase of new automobiles upon the basis of sixteen equal monthly installments, but in the purchase of used automobiles, automobile finance companies require that 40 per cent. of the purchase price be paid in cash, and the balance to be paid in twelve equal monthly payments.

Plaintiff testified that on September 1, 1929, he signed an agreement to purchase a used automobile from the defendant company for the agreed price of $715, and made a deposit of $25 in cash, and that under the conditions of the purchase he was to pay an additional sum of $140 in cash, and that for the balance he was to give his note, payable in sixteen monthly installments of $42 each, secured by a chattel mortgage upon the automobile. It was understood that if the defendant company did not accept the terms of the order, the $25 cash deposit would be returned to plaintiff; that on September 5th, plaintiff paid an additional $140 in cash, and, according to his own testimony, he signed a note for the balance due, to be paid in sixteen equal monthly payments of $42 each, and also signed a chattel mortgage, in conformity with the facts related; that in the early part of October, when the first monthly payment on the note became due, he received notice from the C. I. T. Corporation that it had discounted his note given the defendant, and that payments thereon were to be made to them; that he thereupon went to the office of the C. I. T. Corporation to make payment of the first installment and found that an alteration had been made in his note and in the mortgage, which changed the reading thereof from sixteen payments at $42 per month, to twelve payments at $54.60 per month; that said change had been made without any notice to him, and without his knowledge or consent; that he called the attention of the C. I. T. Corporation to such alteration and tendered $42 in payment of the first installment due, which tender was refused; that upon advice of the C. I. T. Corporation plaintiff went to the defendant company and took the matter up with their manager, John B. Rueschoff; that Rueschoff admitted that the terms of the mortgage had been altered, saying: "We changed these notes; we thought it would be all right. When the C. I. T. would not accept it any other way, being a used car, we thought it would be all right with you so we changed it to twelve notes instead of sixteen." Plaintiff stated that he did not agree to such change because he could not afford to pay $54.60 per month; that he thereafter refused to make the payments on the basis of $54.60 per month, and offered to continue at $42 per month as originally agreed to; that this offer was refused, and later the automobile, while parked in front of the place where plaintiff worked, was taken away. Plaintiff got in touch with Mr. Rueschoff, who told him, "We have taken your car because you did not pay."

On cross-examination plaintiff testified that when, on September 1st, he signed the order for the purchase of the used car, the defendant company told him that they would "submit my credit to a finance company to see if it would handle the paper. Nothing was said about selling my paper to a finance company, nor did I understand that A. B. C. was to guarantee my payments to C. I. T. Mr. Rueschoff or Mr. Ammons did say to me that the policy of the C. I. T. Corporation was not to carry sixteen months paper on used cars, but I was not told that they anticipated a rejection of this account. Before A. B. C. told me that C. I. T. refused to handle the sixteen months deal on the used car, they did tell me that, it being a used car, they did not know whether the C. I. T. company would accept it, but that they would put it through. I never heard of the rejection until I got my paper from the finance company, when I discovered they made the change. * * * They did tell me, on closing the deal, it might not be accepted, but I told Mr. Rueschoff then that a sixteen months deal was the only way I could afford to take my contract, under a sixteen months plan. My contract under the sixteen months plan would be $16.80 less than the twelve months plan. * * * We had an absolute agreement on September 1st that this had to be handled on a sixteen months basis."

John B. Ammons testified for defendant that he took plaintiff's order for the automobile in question and submitted it, with the deposit of $25, to the company for approval; that the company referred plaintiff's credit statement to the finance company, who refused to...