Opinion
No. 27797.
March 21, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, CHARLES B. WILLIAMS, J.
Jerome F. Duggan, Edward A. Dubinsky, Dubinsky Duggan, St. Louis, for appellant.
Hinkel Carey, Joseph J. Becker, St. Louis, for respondent.
This is an action in replevin to recover an automobile trailer. The suit was instituted in the Magistrate Court of the City of St. Louis and tried on appeal in the circuit court. The trial there resulted in a verdict and judgment for the plaintiff and after unavailing motions to set aside the verdict and judgment the defendant prosecutes this appeal.
The trailer in question was built by Senior W. Counts while he was serving in the Army. He acquired the necessary parts for it from time to time as his finances would permit and had it assembled by an acquaintance who was in the business of building trailers. By April of 1947 it was built and the final payment made on it. At that time Counts was out of the Army and operating a service station in Ironton, Missouri, so he had the trailer hauled to his place of business and parked it there. It was twenty-six feet long with Ford truck hubs and dual wheels and had cost him "between six and seven hundred dollars".
In December of 1947 Senior W. Counts borrowed some money from his brothers, Kelly Counts and Denver Counts, and in February of 1948, in order to repay them, he told them to sell the trailer and to deduct the amount due them from the sum realized by the sale.
One of the brothers had a conversation with a Mr. Bierman of the Bierman Iron and Metal Company in St. Louis. Bierman told the brother that if they brought the trailer to him for inspection he might buy it. To carry out this arrangement Counts employed a man in the trucking business to haul the trailer to St. Louis. Kelly Counts accompanied the truck driver and according to their testimony they arrived in St. Louis at an early hour of the morning and parked the trailer on the lot of the Bierman Iron and Metal Company.
Bierman testified that the trailer was not parked on the company lot but adjacent to it. He also stated that a man named Brad Thurman talked to him about selling the trailer. Bierman did not want the trailer and it remained for some time near his company's lot.
Brad Thurman was an army acquaintance of Senior W. Counts and had visited him in Ironton. Thurman also had a trailer but it was a small two-wheel homemade type bearing the serial number DRX 12863. According to the plaintiff this trailer was sold out of the state and Thurman retained the certificate of title.
In May, 1948, Brad Thurman offered for sale to the defendant the trailer here in question and displayed to him a certificate of title for a homemade trailer. This certificate showed Brad W. Thurman to be the owner of a homemade trailer bearing serial number DRX 12863 and that number had been stamped upon the trailer he offered for sale. The defendant bought the trailer for $150 and accepted the certificate assigned to him by Thurman.
Counts' trailer had never registered and had no numbers upon it when it was taken to the Bierman Iron and Metal Company. One of the Counts brothers was a registered automobile dealer and his dealer's license plate had been put on the trailer for the trip to St. Louis.
The appellant contends that the trial court should have directed a verdict for the defendant, contending that he had a certificate of title and had complied with the statutory requirements for the transfer of title to a motor vehicle. The statute in question, Section 8382, R.S.Mo. 1939, Mo. R.S.A. § 8382, and its re-enactments, provide: "It shall be unlawful for any person to operate in this state a motor vehicle or trailer registered under the provisions of the law unless a certificate of ownership shall have been issued as herein provided. In the event of a sale or transfer of ownership of a motor vehicle or trailer for which a certificate of ownership has been issued the holder of such certificate shall endorse on the same an assignment thereof with warranty of title in form printed thereon and prescribed by the Director of Revenue with a statement of all liens or encumbrances on said motor vehicle or trailer and deliver the same to the buyer at the time of the delivery to him of said motor vehicle or trailer."
The defendant overlooks the fact that according to the uncontradicted evidence no certificate of title had ever been issued on the trailer that he bought. The evidence indicates that the certificate assigned to him by Thurman was for another trailer. Metzger was evidently the victim of a fraud and he acquired no title. He cannot claim ownership because of the possession of an assigned certificate for an entirely different trailer. If Thurman simply took possession of the trailer and placed the numbers of his old certificate on it, as it appears he did, he had no title that he could pass and one who purchased from him acquired none. On that question it is stated in 46 American Jurisprudence, p. 31, para. 50: "The general rule that a purchaser can acquire no better title than that possessed by his vendor finds application in replevin actions. So, the rightful owner of property purchased from a trespasser may recover the same in an action of replevin against the purchaser, irrespective of good faith. For instance, the owner of a note which was, after maturity, surreptitiously taken without his knowledge or consent from his possession, by its nominal payee, and sold to a third person, may recover it in a replevin action from the purchaser, although the latter paid value for it, and had no notice of the defect in the title of his vendor." Peper v. American Exchange National Bank, Mo.App., 205 S.W.2d 215; Hendricks v. Evans, 46 Mo.App. 313; National Match Co. v. Empire Storage Ice Co., Mo.App., 19 S.W.2d 565; Globe Rutgers Fire Ins. Co. of New York v. Adams, Mo.App., 230 S.W. 345; Koch et al. v. Branch et al., 44 Mo. 542, 543, 100 Am.Dec. 324.
As defendant's second point he states: "As between victims of a tort feasor the law favors the innocent party". Such a rule, frequently invoked in cases where the wrongdoer has been knowingly clothed by one of the parties, with apparent authority to sell property, has no application here. Our attention is not directed to any act of the plaintiff tending to make him less innocent than the defendant. There is no suggestion in the evidence that plaintiff knew Brad Thurman attempted to sell the trailer, nor did any act of the plaintiff tend to clothe Thurman with any right or apparent right of control over it.
It is contended that the plaintiff had violated the law in failing to register the trailer he had built. The trailer had never been used and it was turned over to a licensed dealer to sell. Section 8382, R.S.Mo. 1939, Mo. R.S.A. § 8382, provides: "* * * that no such certificate shall be required in the case of new motor vehicles or trailers sold by manufacturers to dealers. Dealers shall execute and deliver bills of sale in accordance with forms prescribed by the Director of Revenue for all new cars sold by them."
There is no requirement in the law which the plaintiff violated for since he had neither operated nor sold the trailer he was under no obligation to register it under the statute.
Defendant maintains that a verdict should have been directed for him, contending that the plaintiff failed to prove his ownership and that mere antecedent possession is insufficient to sustain an action in replevin. Such a point does not appear to be presented by the evidence. The plaintiff testified that he built the trailer for himself. It is true that he stated that he "gave" it to his brothers to sell, but it was explained that the brothers had no interest in the trailer but were to be allowed to deduct plaintiff's debt to them from the amount realized on the sale. The evidence presents ample proof of both ownership and right of possession in the plaintiff.
As to the main instruction given the defendant states that it was not supported by any evidence that plaintiff's title was superior to the defendant's. This has been covered by the points heretofore discussed and the instruction is free of the errors asserted.
The last assignment of error is that the verdict was insufficient in that it did not find that the plaintiff was the owner of the trailer and that the defendant was in wrongful possession of it. In support of this assignment we are cited to Barnes v. Plessner, 137 Mo.App. 571, 119 S.W. 457. In that case the jury found that the plaintiff was the owner of the goods and entitled to possession but did not find that the defendant was wrongfully in possession. The defendant there had denied that he had possession of the property and the court held that the verdict was not responsive to all of the issues presented. Here we have no such situation. The possession by the defendant was admitted. The verdict simply finds in favor of the plaintiff and follows with the finding that he is entitled to possession. The general finding was sufficient on the question of plaintiff's ownership as that was the issue presented to the jury by the instructions, and since the defendant admitted he was in possession of the trailer it was not necessary for the jury to so find. Brown v. Shaw, Mo.App., 12 S.W.2d 508.
The Commissioner recommends that the judgment of the circuit court be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.