Opinion
No. 21545.
June 4, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, ALLEN C. SOUTHERN, J.
Ben W. Swofford, Laurence R. Smith, Swofford, Schroeder Shankland, Kansas City, for appellants.
Maurice J. O'Sullivan, John G. Killiger, Jr., Kansas City, for respondent.
This is a suit in replevin to recover a Dodge truck. A jury was waived and on trial to the court judgment was for defendant. Plaintiffs appeal.
Plaintiffs, Manual Pheffer and George Overall, were engaged as partners in the operation of a used car business under the name of M M Auto Wholesale at 1920 East 15th Street, Kansas City, Missouri.
Overall, on behalf of plaintiffs, on April 10, 1948, purchased the Dodge truck at an auto auction in St. Louis, Missouri from Charles O. Moyer. At the time of this purchase, Moyer had a Missouri certificate of title to the truck in his name, and on the back of same, at the time of said sale, on April 10, 1948, he made an assignment to plaintiffs. The certificate of title was handed to Overall at the time the truck was delivered to him. Plaintiff Overall gave Moyer a check on a Kansas City bank for $1,250 in payment for the truck. The certificate of title was then attached to the check and was received by plaintiffs from the Kansas City bank on April 18, 1948, when the check had been cleared through the bank. This method of handling car titles when checks are given therefor is a well recognized practice among car dealers according to Overall.
Plaintiff Overall brought the Dodge truck from St. Louis to plaintiffs' used car lot in Kansas City on April 10, 1948. The next day a man representing himself to be Irby Donelson of 1733 North Summit, Springfield, Missouri, came to plaintiffs' car lot possessed of a 1948 Frazer sedan automobile. Under date of April 12, 1948, plaintiffs purchased from Donelson the Frazer sedan giving him in exchange therefor the Dodge truck here involved with a valuation of $1,850 placed thereon, and a check for $350. At the time of the exchange Donelson gave to plaintiffs a bill of sale to the Frazer car and assigned to them an Arkansas title thereto.
Plaintiffs gave Donelson a bill of sale to the Dodge truck on the bottom of which document plaintiff Overall wrote, "title to be delivered to above truck as soon as possible." Plaintiffs, at the time, had not yet regained possession of the title certificate to the Dodge truck. This title certificate which, as stated, had been attached to the check given by plaintiffs to Moyer in St. Louis had not as yet cleared through the bank. Donelson cashed the check for $350 given him by plaintiffs.
In the bill of sale which Donelson gave to plaintiffs covering the Frazer sedan was the representation and warranty that it was free and clear of all encumbrances. There was in fact at that time, unknown to plaintiffs, a chattel mortgage on the Frazer sedan in the amount of $2,244 in favor of Green Finance Company of Springfield, Missouri.
On April 13, 1948, Donelson took the Dodge truck to defendant's place of business at 2316 McGee Street, Kansas City, Missouri, and offered to sell it to defendant. At that time defendant was engaged in business as a new car dealer. Donelson showed defendant the bill of sale he had obtained from plaintiffs, dated April 12, 1948, and made out to "Irby Donelson, 1733 No Summit, Springfield, Mo." Defendant testified that he "was suspicious" inasmuch as Donelson had just purchased the truck the day before. Thereupon defendant made a phone call to plaintiffs' place of business and talked to someone who "represented himself as George." This person at the other end of the phone told defendant that Donelson had purchased the truck from plaintiffs; that they had clear title; that the title certificate "was in transit attached to their check from St. Louis," and that when plaintiffs received the title certificate they would deliver it to defendant. Plaintiff Overall denied having talked over the phone with defendant, stating that he was out of town for a week immediately following the sale to Donelson; that the only person at plaintiffs' place of business that week was a female bookkeeper.
Defendant paid Donelson $1,400 for the Dodge truck and testified that he had a buyer willing to pay $1,500 for it. Defendant obtained an affidavit from Donelson to the effect that Donelson sold the truck to defendant and that it was clear of encumbrances.
After plaintiffs received the certificate of title to the Dodge truck from the Kansas City bank on April 18, 1948, they made an assignment of said title certificate to Donelson on April 19, 1948, by filling out the form on the back of the certificate. The certificate of title was placed in an envelope by plaintiffs, addressed to Irby Donelson, 1733 North Summit, Springfield, Missouri, and dispatched as registered mail. The letter containing the certificate was returned to plaintiffs, undelivered, on about May 1, 1948. The returned envelope was introduced in evidence.
Subsequent to mailing this letter, plaintiffs learned of the mortgage of the Green Finance Company on the Frazer car plaintiffs had purchased from Donelson. Plaintiff Overall phoned to the post office at Springfield and was informed that Donelson no longer lived at the address given. Plaintiffs learned that defendant had possession of the Dodge truck and commenced this action on May 12, 1948. After filing the present suit plaintiffs sought to locate Donelson, but were unsuccessful.
In the meantime and on April 14, 1948, just two days after plaintiffs had purchased the Frazer car from Donelson, they sold it to one Joe Loecker for $1,930. Plaintiffs still retain this money. Plaintiffs offered in evidence a petition filed against them by Loecker on December 13, 1948, in the Circuit Court at Independence. The offer was rejected.
At the time of filing the present replevin suit plaintiffs executed a bond and were given possession of the Dodge truck following its seizure by the sheriff. Defendant put up no redelivery bond. In January, 1949, plaintiffs sold the Dodge truck for approximately $1,000. As stated, the trial court's judgment was in favor of defendant, and plaintiffs appeal.
Under our present statute, Section 510.310, R.S. 1949, where a case is tried to the court without the aid of a jury, as here, the judgment shall not be set aside "unless clearly erroneous."
The trial court found that plaintiffs were not entitled to possession of the Dodge truck here involved because plaintiffs sold said vehicle to Donelson and that sale was not rescinded by plaintiffs prior to the institution of this action. Many cases in this state hold that no right exists to institute a replevin action until there has been a rescission. Winona Wagon Co. v. Feaster, 188 Mo.App. 307, 175 S.W. 109; Kingman-Moore Implement Co. v. Ellis, 125 Mo.App. 692, 103 S.W. 127.
In the instant case plaintiffs completed a sale of the Dodge truck by delivering possession and thereafter mailing to Donelson a properly executed certificate of title. When plaintiffs deposited the certificate of title in the mails addressed to Donelson it constituted a delivery to him, the postal authorities being considered his agents for the transmission of the certificate to him. Edwards v. Business Men's Acc. Ass'n of Am., 205 Mo.App. 102, 221 S.W. 422. The transaction was not void but, at most, only voidable.
Plaintiff Overall testified that immediately upon learning that Donelson was not at the address he had given, and that defendant had possession of the Dodge truck, this replevin action was instituted.
Plaintiffs argue, in their briefs, that because of a defective title to the Frazer automobile delivered to them by Donelson they had a right to rescind the transaction so as to furnish a basis for their replevin action. However, whether plaintiffs had such right or not, they did not rescind and the trial court so found. There is ample evidence in the transcript to justify a finding that plaintiffs made no attempt to rescind prior to the institution of this action. It is fundamental that their right to recover must have existed at the time the action was commenced.
Much of plaintiffs' brief is taken up with an assault upon defendant's title. However, it is elementary that a plaintiff in replevin must recover on the strength of his own right, and not on the weakness of defendant. Foulke v. McIntosh, Mo.App., 214 S.W.2d loc. cit. 736.
We think the cases relied upon by plaintiffs are distinguishable from the instant case. In Wills v. Shepherd, Mo.App., 231 S.W.2d 843, title remained in plaintiffs because the certificate had not been assigned in accordance with the statute.
In Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, 979, Pearl received the certificates of title from his vendors, but the assignments were not completed. He therefore conveyed no title to his vendee. The court held that although Pearl did not get legal title to the cars he could maintain replevin because he had paid the full purchase price; that he could have compelled his assignors to complete the transfer of the legal title to him, unless they saw fit to return the purchase price and rescind the sale; that his vendors intended for him to have the cars and claimed no rights against him; that, under these facts, he "had a special interest in the cars which gave him a right of possession superior to defendant's claim under a mortgage from the mortgagor who never got any title."
In the other cases cited by plaintiffs in support of their position a rescission had actually taken place.
The facts in the case at bar show that plaintiffs parted with both possession and title to the Dodge truck; that two days after the transaction with Donelson they sold the Frazer car for $1,930, which sum they still retain. Plaintiffs made no tender to either Donelson or defendant. At the date of the institution of this suit and up to the time of trial plaintiffs had suffered no loss. Under the facts, we cannot say that the trial court's finding was "clearly erroneous."
The judgment is, therefore, affirmed. All concur.