Opinion
May 28, 1952.
1. — Evidence. In action by finance company, which was the holder of a conditional sales contract on automobile, against automobile dealers, who had purchased the automobile from conditional buyer without notice of conditional sales contract, to replevy automobile, conditional buyer, who sold automobile to dealers, was not competent as a witness to relate circumstances or to prove identity of automobile.
2. — Stipulations. Where stipulation of facts was filed before case was tried, and facts were plainly set forth and were fully agreed on, losers in the action should not be heard to object to the proceedings or to the findings of facts by trial court, if such findings were supported by substantial evidence.
3. — Pleading. If trial court should have rendered judgment for defendants on the pleadings, time for defendants to urge rendition of judgment on the pleadings was before stipulation as to the facts was entered into by the parties.
4. — Appeal and Error. A party cannot gamble on view to be taken by trial court and then assert that the view finally arrived at by trial court was erroneous.
5. — Appeal and Error. Defendants could not be heard to complain for first time on appeal that pleadings had not been reformed in equity.
6. — Appeal and Error. Defendants could not be heard to complain for the first time on appeal that improper evidence was admitted.
7. — Stipulations. Defendants could not complain on appeal that money judgment was rendered for plaintiff in replevin action, where facts they had stipulated had provided that money judgment should take place of automobile sought to be replevied.
8. — Stipulations. Where stipulation of the parties was filed, there was no occasion for notice to any party of filing of a new petition setting forth transactions, occasions or events which had happened since date of pleading sought to be supplemented. Section 509.510 R.S. Mo. 1949. V.A.M.S.
9. — Stipulations. Where parties stipulated that certain facts existed, there was no possibility that any of the parties to the stipulation could be heard on appeal to say that facts were otherwise than as so stipulated.
10. — Sales. In action by finance company, which was the holder of a conditional sales contract on automobile, incorrectly describing the automobile, against automobile dealers who had purchased the automobile from conditional buyer without notice of conditional sales contract, to replevy automobile, evidence sustained finding in favor of finance company.
Appeal from Circuit Court of Scott County, Missouri. — Hon. R.B. Oliver, III, Judge.
Fred L. Henley and Von Mayes for Appellants.
AFFIRMED.
I. There is a fatal variance between the pleadings in Count 2 of plaintiff's petition and the proof. The pleading is that subsequent to the filing of the first amended petition it was agreed that the automobile be sold and the proceeds be held to abide the final result of the litigation. The proof is that prior to the filing of the second amended petition containing the Count 2 in equity the automobile was sold and the proceeds held in lieu of or substituted for the automobile pending the result of the replevin suit only. II. The matters pleaded in Count 2 had not accrued at the time of the commencement of this action. Plaintiff cannot, by an amended petition, set up and recover on a cause of action that had not accrued at the time of the commencement of this action. Lindsey v. Evans, 174 S.W.2d 390, l.c. 395; Jegglin v. Orr, 29 S.W.2d 721 l.c. 724; Wocet v. Seacot 212 S.W.2d 449 l.c. 453; Pheffer v. Kleb 241 S.W.2d 91 l.c. (7). An amended petition relates back to the time of the commencement of the action. Cindrick v. Scott 42 S.W.2d 957 (4). II. Plaintiff's right to recover the proceeds of the sale of the automobile is, according to the evidence, predicated upon its successfully maintaining replevin. The trial court correctly held that plaintiff could not recover in replevin and plaintiff not having appealed from that judgment the same is now res judicata. The judgment in replevin was on the merits. The judgment of the trial court on the replevin Count being against the plaintiff on the merits, the Court erred in finding for the plaintiff on the Second Count which Count pleaded "that if its (plaintiff's) cause of action under Count 1 of this petition should be denied for any reason except on the merits, * * *" (emphasis ours) (See paragraph 13, plaintiff's petition, pages 5 and 6 of the Transcript). A. In describing an automobile in a conditional sales contract the giving of an incorrect motor number, body style and type of the automobile is fatal to the description as against an innocent purchaser. First National Bank of Brookfield v. Gardner, 5 S.W.2d 1115. B. It is requisite to respondent's case in replevin that appellants be in possession of the automobile at the time of the commencement of this action. Sipe v. Groce, 1 S.W.2d 1034; Emory v. Arnold 168 SW l.c. 321; Morrow v. Pryor 125 Mo. App. 344, 102 S.W. 582. IV. The Court erred in permitting the respondent's witnesses to testify that the automobile sued for was the same automobile as that described in the conditional sales contract. While parol evidence may be used to aid an imperfect or incomplete description, it may not be used to contradict or affix to a contract one different than that therein contained. Where the description of the property in a contract is full, complete and definite, but is false, the contract must be reformed in a court of equity to escape the parol evidence rule. Cattle Company v. Bilby 37 Mo. App. 43; Ezo v. Refining Co., 87 S.W.2d 1051 l.c. 1054. V. The judgment rendered is a money judgment at law not authorized by the pleadings and is void. Hecker v. Bleish 319 Mo. 149, 3 S.W.2d 1008. It is earnestly urged that the judgment of the trial court on Count 2 of plaintiff's petition should be reversed.
McHaney McHaney for Respondent.
I. The Court properly rendered judgment in favor of the plaintiff upon Count Two of plaintiff's petition. (1) After suit was filed against the VanAusdalls for alleged conversion and against their purchaser, Cain, for replevin and when it appeared that subsequent to the filing of the suit Cain had transferred possession back to VanAusdalls prior to service of writ of replevin upon him, the suit was dismissed as to Cain and amended petition filed in replevin against VanAusdalls. A continuance of the case in that status would perhaps have violated the rule prohibiting a replevin action against a person not in possession at the time of the filing of the suit and would perhaps have necessitated a dismissal and refiling of an action against the VanAusdalls in replevin. After this situation arose, the defendants proposed selling the automobile in dispute and holding the proceeds to abide the result of the litigation to determine the respective rights of the parties. Subsequent thereto, the defendants sold the automobile with the consent of the plaintiff, making it impossible for plaintiff to further pursue its remedy of replevin against the automobile in any further action, and restricting the rights of the plaintiff to a recovery against the proceeds in the hands of the defendants. In this situation the plaintiffs, with leave of court, amended their original complaint, adding to the allegations contained in the original complaint, the allegations relative to sale of the automobile by consent and the consequent creation of a constructive trust of the proceeds of the sale in the hands of the defendant, together with a prayer that the court impress such funds with a lien in favor of the plaintiff by reason of the conditional sales contract sued on in the original complaint and that the defendants be divested of any title therein and the same be vested in the plaintiff. Such amendments although concerning transactions arising after the filing of the original petition are fully authorized under the new civil code of Missouri which became effective January 1, 1945. Sec. 509.510, R.S. Mo., 1949; Fed. Rule 15 (d); Moore's Fed. Practice, 2nd Ed., Vol. 2, page 859; Carr Missouri Civil Procedure, Vol. 1. p. 566. (2) A suit to recover proceeds of sale of property covered by conditional sales contract, sold under mutual consent of all the parties concerned, is a suit for the recovery of trust funds and is a proper subject for equitable jurisdiction. 59 C.J.S. Sec. 30, p. 67; 65 C.J., Secs. 885, 888, 940, 943, 154; Dibert V. D'Arcy, 154 S.W. 1116, 1125, 248 Mo. 617; Grant v. Knox (Mo. A.) 227 S.W. 661. (3) The appellant seeks to make some point of the fact that in the stipulation of facts, filed herein, it was said the proceeds of the sale were to abide the results of the replevin suit. The suit then pending was a replevin suit but was subsequently converted by amendment into a suit to establish a constructive trust based on the subsequent sale of the automobile by the consent of the parties. The obvious intent of the parties was to stipulate the proceeds were to be held to abide the results of the suit then pending, regardless of its technical nature, or any future suit to be instituted for the recovery of the trust funds. This was the expressed understanding of the appellant as testified to by him in the case. In view of the certainty of the purpose and intention of the parties, regardless of the loose language of the stipulation, the plaintiff should not be cast because of the use of the words "replevin suit" rather than simple "suit" (Tr. pp. 49, 50). II. The conditional sales contract in question was an Arkansas contract and enforceable in Missouri according to the laws of Arkansas. Under the laws of Arkansas, the same is enforceable, though containing an incorrect motor number, where the subject matter of the sale is actually identified as being in truth and fact the subject matter of the sale. Such fact being a question for the Court, based upon the testimony of identification. The overwhelming testimony in this case establishes the identity of the automobile in question as being the automobile intended to be described in the conditional sales contract under which plaintiff seeks to recover. Jerome P. Parker-Harris Co. v. Stephens, 224 S.W. 1036, 205 Mo. App. 373; Wisdom v. Keithley 167 S.W.2d 450, 456; Associates Inv. Co. v. Pippin et al. (Ark.), 211 S.W.2d 887. III. The uncontradicted evidence in this case shows that the year of manufacture, "1947," make, "Chevrolet Sedan" and serial number "3EKL. 65000" in the conditional sales contract in controversy were correct, and that there is not in existence any other car bearing the same serial number manufactured by Chevrolet in the year 1947. In addition to the above correct identifying descriptions, the automobile was also described as an Aero Sedan, motor number EAA665020; which portions of the descriptions were incorrect. Since the correct part of the description was sufficient within themselves to identify the automobile in question from all other automobiles, the description is, therefore, sufficient and the errors contained therein do not invalidate mortgage. Kennard v. Davidson (Mo. A.), 217 S.W.2d 389; Local Finance Co. v. Yantis (Mo. A.), 152 S.W.2d 989. IV. The erroneous part of the description under such circumstances may be regarded as surplusage in construing the description. Federal Land Bank of St. Louis v. McColgan, 59 S.W.2d 1052. V. Furthermore, parol evidence, under such circumstances, is admissible to identify, explain or define the subject matter, as was done in the case at bar. 32 CJS., Secs. 1007, 1017; Craig v. Koss Construction Company 69 S.W.2d 964, 966; Bassett v. Glover 31 Mo. App. 150, 151.
The original petition was in replevin and for conversion against appellants and one W.L. Cain. This petition was filed in Pemiscot County and was in two counts. After plaintiff filed its amended petition and appellants, then defendants, had filed their motion to dismiss the case and their answer, the case was sent to Scott County on change of venue. There the case was tried on an agreement of the parties as to the facts involved. That agreement was known as Exhibit 5, and was as follows:
"EXHIBIT 5
"STIPULATION
"Now on this day come the parties in the above entitled cause and waiving a jury agree to submit the above cause to the Court for its determination thereof, and for that purpose agree that the following are the facts upon which the same is to be decided:
"(1) Plaintiff claims to recover from the defendants under a conditional sales agreement on which there is an unpaid balance of $1078.56.
"(2) On January 6, 1948, Mrs. Marie Wright of Joiner, Arkansas, was the owner of one 1947 Fleetmaster Chevrolet Fordor, Maroon Sedan, Motor No. EAA669070, Serial No. 3EKL65000. On the date aforesaid Mrs. Wright made application for an Arkansas license in which she described the above automobile as being a 1947 Chevrolet Aero Sedan, and license was issued under this description.
"(3) On September 7, 1948, Buchanan Chevrolet Company of Osceola, Arkansas, acquired the above described vehicle from Mrs. Wright in a trade.
"(4) On the 17th day of November, 1948, the Buchanan Chevrolet Company of Osceola, Arkansas, at its place of business in said City, sold to one Ed Yowell, of Blytheville, Arkansas, a Chevrolet automobile describing the same in a conditional sales contract as a used 1947 Chevrolet Aero Sedan, Motor #EAA665020, Serial #3EK-L 65000 which conditional sales contract provided the title to said property should not pass to the purchaser until the purchase price was fully paid. The purchase price of the said automobile was $2,170.08 with a down payment of $732.00, leaving a deferred balance due in the sum of $1,438.08, payable in twelve month installments of $119.84 commencing December 27, 1948, payable monthly on the same day of each successive month; that a copy of said conditional sales contract is hereto attached, marked `Exhibit A', and made a part hereof.
"(5) That thereafter said Buchanan Chevrolet Company, for a valuable consideration, sold and transferred said conditional sales contract to the plaintiff, General Motors Acceptance Corporation, a corporation, who is now the owner and hold er thereof.
"(6) Three payments were made under said conditional sales contract leaving an unpaid balance thereon in the sum of $1,078.56.
"(7) On the 15th day of February, 1949, the said Ed Yowell purchased a license for and registered with the Department of Revenue of Arkansas an automobile, being described in said Registration Certificate as a 1947 model Chevrolet four-door, color Maroon, Motor #EAA69020, (no serial number stated), a copy of which registration is hereto attached, marked `Exhibit B', and made a part hereof.
"(8) On the 29th day of March, 1949, the said Ed Yowell, while still a resident of Arkansas, traded and sold to the defendants L.K. Van Ausdall and L.K. Van Ausdall, Jr., doing business as Caruthersville Motor Company, one 1947 Fleetmaster Chevrolet fordor, maroon Sedan, Motor No. EAA669070, Serial No. 2EKL65000 and on said date transferred the Arkansas Registration Certificate described in Paragraph 7 above to the Caruthersville Motor Company.
"(9) Thereafter, on May 17, 1949, the said Ed Yowell executed a Bill of Sale to the Caruthersville Motor Company for the automobile described in Paragraph 7 above, which Bill of Sale described the automobile as a Chevrolet Fordor Sedan, Motor No. EAA669020, Serial No. 3EK-I-65000, a copy of which Bill of Sale is hereto attached, marked `Exhibit C', and made a part hereof.
"(10) Thereafter, on or about the 17th day of May, 1949, Caruthersville Motor Company made application for a Missouri Certificate of Title upon the automobile described in Paragraph 7 above, describing the same in accordance with the Bill of Sale described in Paragraph 9 above, a copy of which application is hereto attached, marked `Exhibit D', and made a part hereof.
"(11) On May 23, 1949, the Caruthersville Motor Company sold the said automobile purchased from Ed Yowell to W.L. Cain of Caruthersville, Missouri, and on said date W.L. Cain made application for a Missouri Certificate of Title to be issued in his name using Motor #EAA669070, Serial #3EKL65000, a copy of said application being hereto attached, marked `Exhibit E', and made a part hereof. Accompanying the aforesaid application by W.L. Cain was an affidavit signed by L.K. Van Ausdall, Jr. on behalf of Caruthersville Motor Company stating that the motor number as shown on the application referred to in Paragraph 10 above was erroneous in that the correct motor number was EAA669070, although the Serial Number was 3EKL65000 as stated in said application. A copy of said affidavit is hereto attached, marked `Exhibit F', and made a part hereof.
"(12) Thereafter, on the 1st day of September, 1949, the plaintiff, General Motors Acceptance Corporation, a corporation, commenced a suit in the Circuit Court of Pemiscot County, Missouri, against these defendants and the said W.L. Cain, by the filing of its petition therein and the suing out of proper process on said date; that said suit was in two Counts, being Count I in replevin against the said W.L. Cain, and Count II in conversion against these defendants.
"(13) On the date of the commencement of said suit, that is, the 1st day of September, 1949, W.L. Cain had in his possession the automobile purchased by him from the defendants, and on said date the defendants, L.K. Van Ausdall and L.K. Van Ausdall, Jr., did not have the actual possession thereof.
"(14) Thereafter, on the 3rd day of September, 1949, a writ of summons was served on these defendants in said suit; that thereafter, on the same day, these defendants purchased from the said W.L. Cain the automobile previously sold to him; and, thereafter, on the same day process was served upon the said W.L. Cain in said suit.
"(15) Thereafter, on the 14th day of September, 1949, plaintiff dismissed said suit as to W.L. Cain and filed an amended petition therein in replevin only against these defendants, and thereafter, on the 15th day of September, 1949, a writ of replevin was served on these defendants.
"(16) Thereafter, it was agreed between the parties to said suit that the automobile replevined be sold to avoid depreciation in value and the proceeds be substituted for the automobile and be held by defendants instead or in lieu of the automobile to abide the final result of the said replevin suit then pending. Pursuant to this agreement defendants sold said automobile to Doley, Inc., of St. Louis, Missouri, for the sum of $950.00, and this sum is now held by these defendants in lieu of said automobile in accordance with said agreement.
"(17) That an Aero Sedan is only a two-door Chevrolet automobile and a Fleetmaster Sedan may be either a two-door or a four-door Chevrolet automobile; that the body style of an Aero Sedan and a Fleetmaster Sedan, whether two-door or four-door, is different, and the outward appearance of each is different.
"(18) That the correct description of the automobile replevined is: A used 1947 Model Chevrolet Fleetmaster four-door Sedan; color Maroon, Motor No. EAA669070, Serial No. 3EKL65000.
"(19) That defendants purchased the automobile described in paragraph 8 above from Ed Yowell without any actual notice of the existence of a conditional sales contract, if any, affecting the same.
"(20) None of the admissions herein contained are in any wise to affect either party or to be regarded as made, except for the purpose of the submission of this controversy and the same constitute all of the facts pertaining thereto, except that all parties reserve the right to present evidence to the Court on whether the automobile sold to Ed Yowell under the conditional sales agreement described in Paragraph 4 above is one and the same automobile sold by defendants to W.L. Cain as described in Paragraph 11 above."
We have read the evidence contained in the transcript and find that such evidence proved substantially all of the facts stated in such Exhibit 5.
Exhibit "A" referred to in Paragraph 4 of Exhibit 5, is the sales contract between Buchanan Chevrolet Company of Osceola, Arkansas, and Ed Yowell, a resident of the State of Arkansas.
Exhibit "B" referred to in Paragraph 7 of Exhibit 5, is the registration by Yowell in Arkansas of the automobile he had purchased from Buchanan Chevrolet Company.
Exhibit "C" referred to in Paragraph 9 of Exhibit 5, is a bill of sale from Yowell to Caruthersville Motor Company.
Exhibit "E" referred to in Paragraph 11 of Exhibit 5, is the application of Caruthersville Motor Company for a Missouri Certificate of Title to the automobile described in Paragraph 7 of said Exhibit 5.
Exhibit "E" referred to in Paragraph 11 of Exhibit 5, is the application of E.L. Cain for registration of that automobile in Missouri.
Exhibit "F" referred to in Paragraph 11 of Exhibit 5, is the affidavit of defendant L.K. Van Ausdall, Jr., as to the error in the motor number of the automobile sold by defendants and that the serial number thereof is correct.
Ed Yowell, who executed the bill of sale to defendants, known as Caruthersville Motor Company, was not competent as a witness to relate the circumstances or to prove the identity or lack of identity of the automobile in question.
On June 11, 1951, the trial court entered its findings and order as follows:
"Now on this day in open Court, this cause is again taken up and submitted to the Court, and the Court finds the issues for the plaintiff and against defendants on Count #2 of plaintiff's petition, and the Court further finds for the defendants and against the plaintiff on Count #1 of plaintiff's petition, and the Court further finds that plaintiff should recover judgement against the defendants in the sum of Nine Hundred and Fifty ($950.00) Dollars, and its costs.
"IT IS, THEREFORE, ORDERED, CONSIDERED AND ADJUDGED BY THE COURT, that plaintiff recover of and from the defendants the sum of Nine Hundred and Fifty ($950.00) Dollars, and its costs herein expended."
Defendants filed their motion for new trial, which was overruled June 21, 1951. They have appealed to this Court. In their brief defendants urge seven assignments of alleged error, which they now contend entitle them to a reversal of the trial court's judgment.
In view of said Exhibit 5 and the authorities cited by plaintiff in its brief, we decline to enter into a consideration of those assignments of alleged error.
The stipulation of facts, (Exhibit 5, set out in full above) was filed before this case was tried in Scott County. The facts are plainly set forth and are therein fully agreed upon. The losers in such a law suit, who are parties to such stipulation, should not be heard to object to the proceedings or to the findings of facts by the trial court, if such findings are supported by substantial evidence.
If the trial court should have rendered judgment for defendants on the pleadings, the time to urge such objection was before the stipulation as to the facts was entered into. A party cannot gamble on the view to be taken by the trial court and then assert that the view finally arrived at by such trial court was erroneous. Nor can defendants now be heard to complain that the pleadings had not been reformed in equity. Neither can defendants now be heard on their complaint that improper evidence was admitted.
According to Exhibit 5, the replevin suit against W.L. Cain had been disposed of when the stipulation was signed and filed. The defendants cannot now complain that a money judgment was rendered for plaintiff, when the facts they had stipulated provided that a money judgment should take the place of the automobile itself.
The case was tried on the facts stipulated in Exhibit 5. The facts stipulated therein bind both plaintiff and defendants. Since Exhibit 5 was filed there was no occasion for notice to any party of the filing of a new petition, setting forth the transactions, occasions or events which had happened "since the date of the pleading sought to be supplemented." Section 509.510 R.S. Mo. 1949.
When the parties agreed in the stipulation, known as Exhibit 5, that certain facts existed, we see no possibility that either party to such stipulation can now be heard to say that the facts were otherwise than as so stipulated. Hammontree v. Huber, 39 Mo. App. 326; Slaughter v. Protective League Life Insurance Co., 223 S.W. 819, 205 Mo. App. 352; Maryland Casualty Company v. Dobbin, 108 S.W.2d 166, 232 Mo. App. 557.
The evidence in the transcript and the stipulation as to the facts were sufficient to sustain the finding of the trial court that the automobile, upon which the Buchanan Chevrolet Company of Osceola, Arkansas, held a conditional sales contract from Ed Yowell, was the same automobile purchased from Ed Yowell by defendants L.K. Van Ausdall and L.K. Van Ausdall, Jr., as the Caruthersville Motor Company. That evidence and those stipulated facts were sufficient to put the right of possession of such automobile, and the fund put up in lieu thereof, in the plaintiff, the assignee of the Buchanan Chevrolet Company of Osceola, Arkansas. It is so ordered. Vandeventer, P. J, concurs in result. McDowell, J., concurs.