Opinion
No. 27863.
November 21, 1950. As Modified on Denial of Rehearing December 22, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
John T. Sluggett, St. Louis, for appellant.
Philip A. Foley, Clayton, for respondent.
This is an action in replevin which was brought before a magistrate court in St. Louis County to recover an automobile. After a judgment for the plaintiff the defendant appealed and upon a trial de novo in the circuit court the plaintiff again prevailed. From the judgment of the circuit court defendant prosecutes this appeal.
The subject of the suit is a 1948 Buick automobile which the plaintiff claims to have purchased from the E. B. Jones Used Car Arena on August 17, 1948. The plaintiff was in the business of dealing in used cars. After paying $3,350 to the Jones Company he took possession of the Buick. The only documentary evidence of the transaction is a copy of a printed order form signed by Jacobson, the plaintiff, and "accepted" by a salesman of the Jones Company. The serial number of the car is written on the order form upon which is also written "paid in full" and there is an additional notation that the car is for resale. The plaintiff stated that the words "for resale" were placed upon the form to avoid the need of paying sales tax.
After having thus acquired the automobile the plaintiff used it until August 24, at which time he took it to a man named Goldstein, who also was a used car dealer, operating as "Auto Mart". According to the plaintiff he left the car with Goldstein with directions to sell it and send him the money. Goldstein's version of what took place is different. He says that he purchased the car from the plaintiff and paid for it.
Up to this point no certificate of title to the automobile had ever changed hands between the Jones Company, Jacobson or Goldstein. The only title to the car in evidence was issued by the Director of Revenue of the State of Missouri on August 23, 1948, or six days after the plaintiff claims to have first obtained possession of the Buick. This title was issued to Celeste L. Rotter. Mrs. Rotter, testifying on behalf of the plaintiff, said that she sold the automobile to the E. B. Jones Company and that a man from that company called at her home and got the automobile. She executed the assignment provided on the back of the title at that time, but the space for the name of the assignee was not filled in. Her assignment is notarized and dated August 25, 1948.
After the car was left by the plaintiff with Goldstein it was offered by Goldstein for sale to the defendant, M. B. Thomas Auto Sales, who paid $3,075 for it. Goldstein obtained title from the E. B. Jones Company and had the words "Auto Mart" written in the space provided for the assignee. He then executed the re-assignment on the title, which is provided for registered dealers, to the defendant and gave the defendant the certificate thus executed.
Plaintiff contends that Goldstein never gave him any money for the car and that the E. B. Jones Company had no right to give Goldstein the certificate of title. Goldstein claims that when he bought and paid for the car plaintiff called the Jones Company and directed them to give him the title.
There are a number of points raised by the appellant. Among them is the contention that the court erred in overruling the defendant's motion for a directed verdict at the close of plaintiff's case and at the close of all the evidence. Both parties are in agreement on two points. The first is that plaintiff never had title to the Buick and the second is that replevin must rest upon a right of possession in the plaintiff. The plaintiff asserts his right of possession upon the fact that he paid E. B. Jones Used Car Arena for the car and was awaiting a certificate of title properly assigned by them. He contends that the Jones Company, from whom he purchased it, wrongfully gave the title to Goldstein, who in turn transferred it to defendant.
Plaintiff relies upon the case of Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, and Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764. In the latter case the plaintiff came into possession of the automobile in dispute under a mortgage that he held. The defendant was a mere trespasser who converted the automobile to his own use and interposed as a defense, to the subsequent replevin suit brought by Rankin, the contention that the title by which Rankin's mortgagor held was defective and consequently Rankin's title under the mortgage was not good. The court held that the undisputed right to possession which Rankin held was sufficient to maintain an action against a mere trespasser who had converted the automobile to his own use.
The holding in the Pearl case is fairly well summarized by the following statement contained in it: "He bases his right of possession on his claim that he had the right to the possession of the cars derived from their true owners, and that defendant got no right, title or interest of any kind in them because it did not deal with any one who had any right to give to it. Even between parties to an illegal contract, recovery of money or property is allowed while the contract remains executory." [357 Mo. 160, 206 S.W.2d 977.]
The facts in the two cases are widely divergent from those under consideration, for the undisputed evidence is that the defendant bought the Buick from Goldstein and received for it a title regular upon its face. Goldstein's possession of the automobile is explained by the plaintiff as follows:
"Q. * * * Now, then, you placed the automobile in the possession of Goldstein, I believe, you said? A. That's right.
"Q. For what purpose? A. He was supposed to have a sale on for the car.
"Q. Was he to sell the car for you or buy it from you? A. He was to sell it for me.
"Q. You authorized him to sell the car? A. I didn't authorize him. I told him to show it and if the man wanted it he was supposed to wire me the money.
"Q. You placed it in his possession with authority to sell it to one particular man, is that correct? A. Whoever the man was.
"Q. Any particular man? A. He had the man.
"Q. Did you place this automobile in his possession with authority to sell it to whoever could buy it at a certain price? A. That's right.
"Q. What was the price? A. I don't remember exactly, right now.
"Q. Did you authorize him to sell it to any prospective purchaser? A. That's right."
Plaintiff called to the stand N. B. Thomas, of the defendant company, who testified about buying the car from Goldstein as follows:
"Q. Did he deliver the title to you on the same day that he delivered the automobile to you? A. Yes, sir.
"Q. And that was on the 25th day of August, 1948? A. The 25th day of August was the day we closed the deal and he brought the title. He may have brought the car on the 24th.
"Q. You did testify yesterday that you paid him before he brought the car or before you got anything? A. I gave him a check for the car on the 24th of the month.
"Q. And he brought the title over to you on the 25th? A. That's right."
Since the title and its assignments are on their face regular in all respects, the situation is entirely different from that which prevailed in the Pearl case, for there the defendant relied on a title which was obviously defective.
There was no compliance at any time by the Jones Company, the plaintiff, or Goldstein, with Section 8382, R.S.Mo. 1939, Mo.R.S.A. § 8382. This section provides that for a valid sale of a used automobile a certificate of title must be assigned to the purchaser. When a dealer is the buyer the assignment must be made to him but he may re-assign directly to a subsequent buyer from him. Under the state of facts here presented the Jones Company had implied authority to fill in its own name as assignee on the title it received from Mrs. Rotter, the original owner. National Bond Investment Co. v. Mound City Finance Co., Mo.App., 161 S.W.2d 664; Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975. It could have made a valid sale to the plaintiff by proper assignment but instead of that the title was passed on to Goldstein who was to sell the car for the plaintiff and Goldstein's business name of "Auto Mart" was inserted as the original assignee before he executed the dealer's assignment to the defendant. All parties were car dealers and the plaintiff must have known that he had no valid title to the car and could pass on none to a new purchaser until he received the certificate from the Jones Company and had a new one issued in his own name. Knowing this he instructed his agent to sell the car. There is no complaint about the price paid by the defendant and by the acts of plaintiff's agent the buyer received an apparently good title. The plaintiff's only complaint is that his agent did not account to him for the purchase price and by reason of this he wishes to take the Buick from the defendant. Since he gave Goldstein full authority to sell the Buick he is in the same position as if he had made the sale himself. Under this state of facts he had no right of possession in the car after Goldstein had made the sale for cash. As between the two parties to this suit, regardless of the condition of the title, such a sale would pass on to the defendant any right of possession that the plaintiff had and he would be estopped from making claim against such a bona fide purchaser. Pearl v. Interstate Securities Co., supra; Seward v. Evrard, Mo.App., 222 S.W.2d 509; Anderson v. Arnold-Strong Motor Co., 229 Mo.App. 1170, 88 S.W.2d 419; Pettus v. Powers, Mo.App., 185 S.W.2d 872.
Other assignments of error raised touch upon the sufficiency of the petition, an instruction, and the verdict returned, but since the plaintiff failed to make a case properly submissible to the jury these other points need not be considered.
For the reasons stated, the trial court erred in overruling defendant's motion for a directed verdict and it is the recommendation of the Commissioner that the judgment be reversed and the cause remanded with directions that defendant be restored to his property or the value thereof, as he may elect, and that his damages for the wrongful taking of his property be assessed and judgment entered therefor.
The foregoing opinion of Wolfe, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded with directions as recommended by the Commissioner.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.