Opinion
No. 27837.
March 21, 1950. Rehearing Denied April 21, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF OF ST. LOUIS, WILLIAM K. KOERNER, J.
Evans Dixon, St. Louis, John F. Evans and William W. Evans, St. Louis, for appellant.
William H. Tombrink and Strubinger, Tudor, Tombrink Wion, all of St. Louis, for respondent.
This is an action in replevin brought by plaintiff, Southern Illinois Finance Corporation, to recover the possession of an automobile. The trial below resulted in a verdict and judgment for defendant, Wilbert Strubel. Thereafter, the Court sustained plaintiff's motion for a new trial, and from this action of the court defendant has appealed.
The petition alleged that plaintiff was entitled to the possession of one "1948 Aero Model, Chevrolet Sedan, Serial Number 1FKC-16957; motor number FAA-202823"; and that said property, wrongfully detained by defendant, is of the actual value of $2,000. Judgment was prayed, in the alternative, for the possession of said property and $500 for the wrongful detention; or for $2,000, the actual value of the property, and costs expended.
The answer of the defendant, in substance, pleaded that on August 12, 1948, the automobile described in plaintiff's petition was owned by Shearer Motor Company, and that on said day, in the presence of the agents of said Shearer Motor Company, defendant purchased the automobile from Robert C. Reaves; that said agents of Shearer Motor Company, by acts and conduct, induced defendant to purchase said automobile and give valuable consideration therefor; that the sale to defendant was with the consent and by authority of said Shearer Motor Company, its agents and employees, who at the time held out said Reaves as the true owner of the car, and made it appear to defendant that title to the car was vested in Robert C. Reaves, and that Reaves had authority to sell same; that defendant acquired a valid title to the automobile, and that Shearer Motor Company was by its conduct estopped to deny the validity of defendant's title, or deny the authority of Reaves to sell said automobile to defendant; and that plaintiff, the assignee of whatever rights Shearer Motor Company had in the automobile, was likewise estopped from denying the validity of the defendant's title to the automobile.
Defendant's answer further alleged that the claims of the parties arose in the State of Illinois, and consequently their rights were governed by the laws of Illinois. It was then alleged that under the common law and statutes of Illinois, defendant's title to the said automobile was superior to plaintiff's alleged claim.
The automobile in question, prior to August 12, 1948, was owned by the Shearer Motor Company of Mount Vernon, Illinois. On said August 12, 1948, it was sold to Robert C. Reaves under a conditional sales contract, which contract was subsequently assigned to plaintiff. Thereafter, Reaves defaulted in his payments under the conditional sales contract, and plaintiff seeks possession under the provisions of the contract.
Defendant purchased the automobile from Reaves on August 12, 1948, and it is defendant's contention that the sale took place prior to the execution of the conditional sales contract above mentioned. It is also defendant's contention that at the time he purchased the car Reaves was held out to him by Shearer Motor Company as the true owner of the automobile, and that by reason thereof both Shearer Motor Company and its assignee (plaintiff) are estopped to deny defendant's title.
It appears from the testimony that in the summer of 1948, defendant, an insurance salesman, was in need of a new automobile for use in his business. James McClain, a business acquaintance of defendant, put defendant in touch with Robert C. Reaves, a used car dealer. This contact was by telephone on July 31, 1948. At that time Reaves told defendant that he was expecting a shipment of cars from Cincinnati, Ohio, and would sell him a Chevrolet automobile for $1,900, and requested defendant to send him $635 immediately. Defendant complied with this request and sent his personal check to Reaves for that amount. Reaves promised to deliver the car on August 2, 1948, but delivery was not made on that date. Reaves gave as an excuse for his failure to make delivery that the shipment of cars from Cincinnati was stopped by the Interstate Commerce Commission at Aurora, Indiana.
On August 11, 1948, defendant met Reaves in the office of the Ring-Wil Insurance Agency in Belleville, Illinois. At this meeting Reaves told defendant he would secure a car for him from another dealer. Reaves then called the Shearer Motor Company at Mount Vernon, Illinois, and arranged to get a car from them the next day. On the next day Reaves went to Mount Vernon, Illinois, and placed an order for a car with Shearer Motor Company and arranged to have it financed by plaintiff, Southern Illinois Finance Corporation. The agreement was that the car would be delivered in Belleville, Illinois, that afternoon, and the transaction completed there.
Mr. W. F. Hayes, Sales Manager for Shearer Motor Company, took the order for the car and it was approved by Mr. V. J. Koenig, the company's General Manager. Mr. Hayes drove the car in question to Belleville, and Mr. Koenig followed in another car. Reaves drove his own car. According to the testimony of Hayes and Koenig, the parties were to meet at the Ring-Wil Insurance Agency building.
Mr. Hayes testified that when he reached Belleville he parked the car and went to the office of the Ring-Wil Insurance Agency to see if he could find Reaves. Hayes stated that when he arrived at the insurance company's office Reaves was not there, but that defendant Strubel was there. He stated there was another man with Strubel at the time, and that Reaves came in five or ten minutes later. Hayes further testified that they then left the Ring-Wil Building and walked to where the car was parked and that he and Strubel stayed at the car, and Koenig and Reaves went to the office of the plaintiff, Southern Illinois Finance Corporation. Hayes testified further that Strubel got into the car and looked it over, and that about fifteen minutes later Reaves and Koenig came back from the plaintiff's office, at which time Koenig told him the deal was closed and to turn over the car. Hayes testified that he knew nothing about Strubel wanting to purchase the car. He testified: "Mr. Strubel got in the car and looked the car over; him and the other fellow, I don't know who the other fellow was, I never asked him; they looked around the car and they raised the trunk lid and looked in to see about the spare tire and tools; they asked if it had a spare tire. I told them it did, and I showed them the spare tire. * * * Mr. Reaves and Mr. Koenig came back down, and Mr. Koenig told me the deal was all right, we had been paid for our car, we could go ahead and let them have it. * * * I never turned it over to anyone; just left it setting there."
Mr. Koenig testified: "We parked the car on Main Street * * * and then Mr. Hayes went to get Mr. Reaves at the predetermined place where we were to meet together, and as it was getting close to five o'clock and the Southern Illinois closed at five o'clock, I went up and asked Mr. Wangelin to keep the office open and let him know we were there ready to transact business. * * * After I told Mr. Wangelin of the Southern Illinois Finance Company that we were there so he wouldn't leave, I went back to the place where we were supposed to meet Mr. Reaves. * * * There was no one in front of the building, and I watched there for the men to come out of the building. * * * The place we were supposed to meet him was in front of the building downstairs; I didn't go into the building."
Mr. Koenig further testified that he met Mr. Reaves on the sidewalk outside the Ring-Wil Building, and that with him were Mr. Strubel and two other men. He then stated: "We walked to Main Street and on Main Street to almost the intersection, and then Mr. Reaves and I went to the Southern Illinois Finance and the other men walked toward the car. Now I had Mr. Hayes stay with the car.
"Q. And who had the keys then, Mr. Hayes? A. Mr. Hayes, I am sure.
"Q. And what transpired then in the office of the Southern Illinois Finance Corporation as far as you know? A. Well, the necessary papers had been drawn up and they were signed and Mr. Reaves gave me a check, two checks, one a personal check and one a cashier's check. And Mr. Reaves having signed the papers, the Chevrolet sales contract, for us, I endorsed it for Shearer Motor Company to the Southern Illinois Finance Company, and then the Southern Illinois Finance Company issued us the check for the balance that was to be paid."
Mr. Koenig testified that after he was paid in full for the automobile he and Reaves went back to the car, and he (Koenig) told Mr. Hayes he could release the car. Mr. Koenig further stated that the car had not been transferred to Mr. Reaves prior to the transaction in the office of the Southern Illinois Finance Corporation.
Armin H. Wangelin, President of Southern Illinois Finance Corporation, testified that Koenig and Reaves came into his office on August 12, 1948, at approximately five minutes to five. He further testified: "at that time Sergeant Reaves paid Mr. Koenig the down payment that was to be paid on the car, and he also signed the Chevrolet sales contract covering the unpaid balance * * * the Shearer Motor Company, through Mr. Koenig, then sold us that paper, and we gave him a check for it."
The conditional sales contract and note attached thereto were offered in evidence by the plaintiff. Said sales contract was executed by Reaves as buyer, and Shearer Motor Company as seller, and the total sales price, as shown by the contract, was $2,909, and the balance due was $1,966.50, payable in monthly installments of $131.10. As a part of the conditional sales agreement, appears the following provision: "Title to the car and extra equipment shall not pass by delivery to the buyer, but shall remain vested in and be the property of the seller or assigns until the purchase price has been fully paid."
On the reverse side of said agreement is an assignment of the contract executed by Shearer Motor Company in favor of Southern Illinois Finance Corporation. The note attached to the contract was for the sum of $1,966.50, payable to Shearer Motor Company in monthly installments of $131.10, signed by Robert C. Reaves, and endorsed by Shearer Motor Company without recourse to Southern Illinois Finance Corporation.
Mr. Wangelin further testified that he was present at the time the conditional sales contract and note were executed, and that the others present were: Mr. Reaves, Mr. Koenig, and another man whose name he did not know but who he understood was a salesman for Shearer Motor Company. He further stated: "during the time the contract was prepared I saw an exchange of checks for down payment, that is from Reaves to Koenig. But I didn't see the nature of them; I just saw them and heard them discussing the down payment at the time, but I was busy with the contract preparing it so I couldn't tell you too much about that."
The certificate of title was in the possession of Shearer Motor Company and was not delivered to Reaves at the time. It appears that Koenig and Hayes neglected to bring it with them when they came to Belleville to deliver the car. It was later assigned to Reaves and sent to plaintiff company which, in turn, forwarded it to the Secretary of State with an application for title which Reaves had executed on August 12th, when he signed the conditional sales contract. Thereafter, a certificate of title was issued in the name of Reaves and sent to plaintiff. It shows a lien in favor of Southern Illinois Finance Corporation for $1,966.50. Plaintiff has at all times since had possession of this certificate of title.
To make the down payment, Reaves gave Mr. Koenig of Shearer Motor Company a Treasurer's check for $500, issued by the Manufacturer's Bank Trust Company of St. Louis, payable to Wilbert Strubel and Robert Reaves, and gave his personal check for the remainder. The Treasurer's check had been purchased by defendant Strubel on August 2, 1948, to be used as part payment of the purchase price of the car that Reaves promised to sell him.
Defendant Strubel testified that on August 12, 1948, he went to the office of the Ring-Wil Insurance Agency to meet Mr. Reaves, and that the latter arrived at about 4:35 p. m. He stated that Koenig and Hayes had come into the office about five minutes before Reaves arrived. Mr. McClain of the Ring-Wil Insurance Agency was also present. Defendant further testified: "The Ring-Wil Insurance Agency is located on the second floor of an office building right on the square. The office consists of two separate rooms, one outer office facing the hall and an inner office facing the square. There is a hall also to the side. * * * Mr. Koenig, Mr. Hayes, the Shearer men, came into the office and we all gathered in the second office of the Ring-Wil Agency. * * * When they (Koenig and Hayes) came in they introduced themselves and said they were from the Shearer Motor Company at Mount Vernon, Illinois, and were there to deliver a car to Bob Reaves. * * * I explained to them I had been waiting there all day, since I was the man who was going to purchase the car immediately from Mr. Reaves. * * * I asked them about the automobile and if it was new as * * * Mr. Reaves represented; and I questioned them regarding the mileage on the car, and so on. * * * As soon as Mr. Reaves arrived * * * there was conversation, of course; he then asked me to step out into the hall, that is the side hall to this office where we were all gathered, and he showed me the statement of the invoice for this car from the Shearer Motor Company. * * * It was made out to Sergeant Robert C. Reaves, and it had the description of the automobile, 1948 Chevrolet Aero Sedan, Fleetline Aero Sedan, the motor number, serial numbers, had radio, seat covers, license, insurance, title transfer."
Defendant further testified that the price listed on the invoice was $2,909. He further stated: "I was astonished at the price he was paying for this car, and at that time advised him he didn't have to go through with this deal if he didn't desire to; and he explained to me he was a used car dealer and it was general practice in that business that when a dealer became embarrassed, he had to deliver a car, he could go to another dealer and secure another automobile and when he could replace that car of like kind with that dealer they charged him a nominal fee for that service; and he told me he could exchange another car when his shipment came through, and they would charge him only $100, and he stood to lose exactly $100 because of this transaction. * * * He advised me * * * out in the hall, that he hadn't expected to have to pay that amount of money for the car and he hadn't taken that much money to Mount Vernon with him and consequently he would require some of the money I would give him to buy that car in order to pay the remainder that he still owed the Shearer Motor Car Company * * *. We then went back into the office where the Shearer men were and Mr. McClain. * * * I first asked Reaves if he had the title to this car. * * * He said he didn't have that certificate of title because of the fact that the Shearer Motor Company had insisted that they sell this car to him and, in so doing, that title would have to be sent to the Secretary of State, or to the title division of the State of Illinois and a new title be issued in his name, and that when new title would then be sent to him, and he would sign it and send it over to me so I could make application to the State of Missouri for my title. * * * I then told him if he didn't have a title I would require a bill of sale, some evidence I was buying this automobile. * * * I then asked Mr. McClain if he would get us a piece of paper, which he did, and a pencil. * * * I dictated the bill of sale * * * and he wrote it. Mr. Reaves, Sergeant Reaves wrote what I dictated to him. He signed it."
The bill of sale was offered in evidence and is as follows:
"For the consideration of Nineteen Hundred Dollars ($1900) I do hereby transfer title to one 1948 Aero Fleetline Sedan Motor No. FAA-202823, Ser. No. 1FKC-16957 to W. L. Strubel.
"Robert C. Reaves."
Defendant further testified: "That motor number and serial number was taken directly from this invoice or this statement that Mr. Reaves had shown me in the hall. * * * It (invoice) was on the desk.
"Q. Now, at the time you were dictating this bill of sale, where were Mr. Koenig and Mr. Hayes? A. They were directly across the room from us.
"Q. In a matter of feet, can you tell us? A. Approximately eight feet, I would say.
"Q. And were they taking part in the conversation with you then? A. No, Sir, they weren't; they were merely seated there observing the, what went on. * * * As I said, Sergeant Reaves wrote that bill of sale and, after writing it, he handed it to me to read. I read it, and I noticed that there was no date on it, and I handed it back to him and asked him to kindly put the date on it; and he inquired, `What is the date?' and someone in the room, I am not positive as to who it was, said, `It's the 13th,' and he wrote 8/13/48 on the bill of sale. * * * I took it and put it in my pocket. * * * After taking the bill of sale I gave Mr. Reaves my cashier's check or treasurer's check made out from the Manufacturer's Bank Trust Company, and I gave him my personal check for $765, which made the difference between what I had paid him originally and the $1900 agreed on. * * * That check (personal check for $765) was made out directly from this bill of sale that Reaves had just given me, and of course seeing the date of 8/13 on the bill of sale I immediately dated my check the same date.
"Q. Now, at the time that you were given the bill of sale by Mr. Reaves and the time that you gave Mr. Reaves this $500 cashier's check, and this $765 personal check, who was in the room? A. Mr. McClain, Mr. Reaves, Mr. Hayes, and Mr. Koenig.
"Q. * * * how far away were Mr. Hayes and Mr. Koenig? A. Approximately eight feet, directly across the room. * * * After buying the car, I, of course, was very happy about having the car and I commented that I had, out of all the hundreds of automobile agencies in the City of St. Louis, that I had to come to Belleville, Illinois, in order to buy a new car.
"Q. Who did you comment to? A. Mr. Hayes, Mr. Koenig, and Mr. McClain."
Defendant further testified that they then left the office of the insurance agency and walked to where the car was parked. He testified: "As we left the building Mr. Koenig was walking to my right and Mr. Reaves to my left. Mr. Reaves handed me the keys to the car with the statement: `Well, Bill, here are the keys, it's all yours.' * * * Mr. Hayes was at the side where the street is, to my left. * * * I commented regarding the car again. The conversation was all relative to this car, I mean it was about the car, the type of car. I was interested in the car and wanted to see what I had purchased. * * * I put the question about the mileage on the car again and the condition of the car.
"Q. And to whom were you speaking? A. To Reaves and Koenig; and they assured me at that time as we walked down the street that this was as represented, this was a new car, they said it had just been delivered to them the day before and it was as represented; the car had 67 miles on it at the time they left Mount Vernon, and they explained to me the difference involved, that at the time I would see the car it would have some 130 miles on it because it was 50 miles from Mount Vernon to Belleville. * * * * * * All of us walked to the car. * * * The car was locked. I went on the driver's side, unlocked the car, got behind the wheel, started the motor, observed the mileage, the general appearance of it. * * * After listening to the motor I got out on the driver's side and pulled the lever to release the hood. I wanted to see under the motor — the condition of it, whether there was grease or any other matter. I was trying to determine whether it was a new car or whether it had been driven, and as I got out of the car on the driver's side, I lifted the mat, the floor mat, and I noticed there was fine sand around the edges of the floor mat and questioned Mr. Koenig regarding that. He advised me that it was molding sand that frequently adhered to the frame of an automobile, and wasn't road sand or anything that one might think the car had been used to travel over the road. And I observed that there were greasy foot marks on the rug of the back seat, and he assured me, Mr. Koenig assured me that that was customary that they would be there because at the place the men would sit in the car. * * * Mr. McClain, Mr. Hayes, Mr. Koenig, and Mr. Reaves were still there at this time, and about this time Mr. Ringel drove up in his car and joined us on the sidewalk. * * * I would say it was approximately a quarter of five. * * * I noticed there weren't any tools in the car; and at that time, prior to this Mr. Koenig had disappeared, he had left us, and Mr. Hayes was at my side and I noticed the tools weren't in the car and I inquired about the tools, and he assured me if I didn't find the tools under the front seat or in any other part of the car, when I brought the car to Mount Vernon for the thousand mile check he promised me he would supply the necessary tools for the car. * * * Very shortly Mr. Reaves appeared again, and he informed me I had neglected to endorse the $500 Treasurer's check I had given him and asked me to kindly put my endorsement on it, as they wouldn't accept it under those conditions. * * * I didn't have my pen, so we walked up the street to the Lincoln Theatre Cafe or Candy Shop * * * and there I endorsed the check. I got a pen from the manager of the candy store, and there he left and said he was going to endorse the transaction with the Shearer man."
The $500 Treasurer's check referred to was introduced in evidence. It was endorsed by defendant, Reaves, and Shearer Motor Company.
Defendant further testified that Mr. Koenig removed the Illinois license plates that were on the car and that he, defendant, in the presence of Koenig and Hayes, attached a Missouri license plate which he had brought with him. Shortly thereafter defendant drove the car to St. Louis.
Defendant stated that about August 30, 1948, he drove the car to the Shearer Motor Company's place of business at Mount Vernon and received the 1,000 mile checkup that had been promised and a set of tools.
Defendant further testified that the first he heard of the plaintiff being interested in this automobile was after the arrest of Reaves, about September 16, 1948. He stated that he then called Mr. Ringle and the latter told him that when Reaves was arrested it was brought out that the automobile was financed with the Southern Illinois Finance Company and Ringle suggested that he should immediately try to find out where the title was; that Mr. Wangelin, a few days later, contacted him by phone, and later came to St. Louis to talk to him about the matter. Nothing came of this conference.
James R. McClain testified that he was present in the office of the Ring-Wil Insurance Agency at the time defendant dictated the bill of sale to Reaves. He stated that both Hayes and Koenig were present and at the time were standing in the door that divides the two offices, and were "listening to the whole thing." He further stated that both Koenig and Hayes were about eight feet from the desk where defendant sat dictating the bill of sale, and "they were observing everything that was going on."
Mr. McClain further testified: "After this bill of sale was made out the men from Shearer Motor Company suggested they go down and look at the car, which Mr. Strubel was very anxious to see the car at that time; so we all left the office, that is the whole five of us. * * * We were going directly to the car * * * and walking down the sidewalk Mr. Reaves took the keys of the car and handed them to Mr. Strubel and says, `Here are the keys, Bill; it's all yours now.' * * * Mr. Hayes and Mr. Koenig at that time were with us walking down the street. * * * We crossed over from the Belleville Savings Bank over to the new automobile, the '48 Chevrolet, that is, and we looked it over. * * * Mr. Reaves, Mr. Strubel, myself, Mr. Koenig and Mr. Hayes were all there at the time where they parked the car; in other words, they all stood around the car and looked it over, and Mr. Strubel crawled in and out of it, started the motor, looked under fenders, checked for a radio and heater, mentioned the fact that the floor mat in the rear end of the car had marks on it * * * and Mr. Koenig made the remark it was from people climbing in and out, * * * we stayed there I guess about ten minutes before Mr. Reaves and Mr. Koenig had left. * * * I noticed they walked toward the Lincoln Theatre Building; where they was going I didn't know."
Koenig testified that when an automobile is sold an invoice for it is not prepared until after the car is delivered. He denied that he gave Reaves an invoice when Reaves was in the office at Mount Vernon on August 12, 1948, stating that the invoice was later mailed to Reaves. He did not remember the date of mailing. However, Koenig did admit testifying, in a deposition taken in the case, that an invoice was drawn up in the office of Shearer Motor Company on this particular sale. At the time he made this admission he was being questioned with respect to what transpired at the Mount Vernon office when Reaves was there on August 12, 1948, with respect to the sale of the car. When confronted with this question and answer Koenig attempted to reconcile his testimony at the trial with the testimony in the deposition by saying that the question appearing in the deposition did not designate the date when the invoice was drawn up. He also admitted testifying in the deposition that the papers regarding the transaction between his company and Reaves had been completed and signed before he and Reaves arrived at the office of the Southern Illinois Finance Company.
Koenig denied that he saw Hayes turn the keys over to Reaves before he (Koenig) and Reaves went to the office of the finance company. Later, he admitted that he had testified in his deposition that Reaves turned over the keys to some one before he and Reaves went to the office of the finance company, and afterwards testified he did not know how Reaves got the keys. He then gave the following testimony: "Q. * * * and before you went to the finance company, you saw Mr. Reaves hand the keys to the car to someone in that crowd, did you not? A. There was a transfer of keys; wherever they went I don't know, I am not in a position to say."
Koenig denied that before going to the office of the finance company he walked to the car with Strubel, Hayes and Reaves; and denied that he promised Strubel a set of tools and a thousand mile check-up on the car. He stated that the car was not transferred to Reaves until after the transaction between Shearer Motor Company and the plaintiff company was completed. Koenig stated he did not know how Strubel got possession of the automobile, but that Strubel obtained possession some time later.
Both Koenig and Hayes denied they knew that Reaves was in the automobile business. Hayes testified that Reaves did not tell him at Mount Vernon that he intended to sell the car to Strubel, but told him he was buying the automobile for one of his salesmen. Hayes also stated that when they were in Belleville delivering the car he did not know that Reaves was planning to sell the car to Strubel. He also stated that he did not know anything about Strubel purchasing or wanting to purchase the car. He further testified that Koenig and Reaves did not go to the car after they left the Ring-Wil Insurance Agency building before going to the office of the Southern Illinois Finance Company.
Hayes testified that he was not sure who had the keys when he and Strubel went to the car, but thought that Strubel did ask for them at the time. Later, on cross-examination, Hayes testified that he did not remember whether Strubel asked for the keys; nor did he remember to whom he gave the keys.
Hayes denied any knowledge of a bill of sale being given to Strubel by Reaves in the office of the Ring-Wil Insurance Agency. He stated that while there he waited in the outer office and that Reaves, McClain and Strubel were in the inner office.
Hayes further testified that Strubel made inquiry concerning the tools when Koenig and Reaves were at the office of the finance company, but that he did know why Strubel made such inquiry. He further stated that he did not remember making any promise to Strubel of an inspection, or of any promise to furnish him missing tools. He stated that he thought he did later furnish tools to Strubel, but was not sure about it. Later, he testified that he gave tools to Mr. Strubel because he "figured — he was going to drive the car, he was the fellow that was going to use the car. It never entered my mind that he had bought the car. We have lots of cases like that in my home town. * * * Oil companies buy cars, and the man that buys it never drives it."
Defendant testified that the presence of Hayes and Koenig in the office of the Ring-Wil Insurance Agency, and the fact that he had seen the invoice to the automobile, influenced his decision to go through with the transaction with Reaves on August 12, 1948. He stated he knew nothing about anyone going to the finance company on that day, and that there was not the slightest mention of any finance company being involved. He further testified that neither Hayes nor Koenig informed him that Reaves was not the owner of the car, but, in fact, from the conversation of these men, it was apparent to him that Reaves was the owner of the car.
The court sustained plaintiff's motion for new trial on the sixth ground thereof, which was: "Because the court erred in giving and reading to the jury Instruction No. 2, offered by the defendant, said instruction being illegal, erroneous, confusing and misleading, and not properly hypothesizing the facts necessary for a verdict."
Instruction No. 2 is as follows: "You are instructed that if you find and believe from the evidence that on and prior to August 12, 1948, Shearer Motor Company owned the automobile mentioned in the evidence; and if you find that on said date Shearer Company, by and through its agents and employees, delivered the keys and an invoice to said automobile to one Robert Reaves; and if you find that on said date the said Robert Reaves, for a valuable consideration and for a price agreed upon between the parties, executed and delivered a bill of sale to said automobile to defendant, Wilbert Strubel, and thereupon delivered the keys of said automobile and the possession thereof to said Wilbert Strubel; and if you further find that the bill of sale, the keys to said automobile and the automobile itself were delivered to Wilbert Strubel in the presence of and with the knowledge of the employees and agents of Shearer Motor Company, and that said agents and employees there and then had authority from Shearer Motor Company to sell said automobile and relinquish possession thereof; and if you further find that the acts and conduct on the part of the agents and employees of Shearer Motor Company, as above set out, made it reasonably appear to the defendant, Wilbert Strubel, and caused him to believe that the said Robert Reaves was the true owner of said automobile and had the right to sell and dispose of the same, and that defendant reasonably relied and acted upon such appearance and belief and was induced thereby to purchase said automobile, and that in so doing he acted in a reasonably cautious manner; and if you further find that said agents and employees of Shearer Motor Company knew or should have known that their acts and conduct as set out herein would reasonably and probably induce defendant to believe that said Robert Reaves was the true owner of said automobile and would cause him to act on such belief, then you are instructed that Shearer Motor Company thereby became estopped and precluded from denying that said Robert Reaves was the true owner of said automobile and had the right and authority to sell the same to defendant; and if you further find and believe that said acts and transactions occurred prior to the time of the execution of the conditional sales contract and the assignment thereof by Shearer Motor Company to the plaintiff herein, then under the law of this case the legal title to said automobile became and was vested in the defendant, and if you find the facts and circumstances set out herein to be true, you should find and return a verdict in favor of the defendant."
The only issue on this appeal is whether or not the foregoing instruction is erroneous.
Respondent urges that the court erred in submitting as an element of estoppel (1) delivery of the keys by Shearer Motor Company to Reaves, (2) delivery of the keys by Reaves to defendant, and (3) delivery of the car to defendant by Reaves. The basis of respondent's complaint is that the foregoing acts should not have been submitted in said instruction as elements of estoppel, because the evidence does not show that defendant was influenced to part with his money by reason thereof. There is no evidence that defendant knew that Reaves had been given possession of the keys by Shearer Motor Company before he accepted the bill of sale and delivered to Reaves his checks for the purchase price. It also appears that Reaves delivered the keys and the possession of the car to defendant after he had given the bill of sale and received the purchase price for the car. It cannot be said, therefore, that defendant was influenced to part with his money by reason of the foregoing acts. But their inclusion in the instruction as elements of estoppel to be considered by the jury does not, in our opinion, constitute reversible error.
The acts of Shearer Motor Company's agents in delivering the keys to Reaves, and the delivery of the keys and automobile by Reaves to defendant were submitted in the conjunctive, along with their conduct in putting Reaves in possession of an invoice for the car and standing by, with full knowledge, while Reaves delivered the bill of sale to defendant. These last two elements were, in our opinion, sufficient to warrant a finding for defendant; and the fact that the jury were required to find, in addition, other facts which were, strictly speaking, not proper elements of estoppel, merely placed upon defendant an unnecessary burden. Halley v. Federal Truck Co., Mo.App., 274 S.W. 507; Wolfe v. Payne, 294 Mo. 170, 241 S.W. 915; Westenhaver v. St. Louis-San Francisco R. Co., 340 Mo. 511, 102 S.W.2d 661; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Oesterle v. Kroger Grocery Baking Co., 346 Mo. 321, 141 S.W.2d 780; Lanasa v. Downey, Mo.App., 201 S.W.2d 179; Whitehead v. Fogelman, Mo.App., 44 S.W.2d 261.
It is also urged that it was error to submit as an element of estoppel the delivery of the alleged invoice mentioned in the evidence to Reaves by Shearer Motor Company. In support of this contention, it is urged that there is no evidence that Shearer Motor Company ever delivered said invoice to Reaves. We do not believe there is any merit to this contention.
The evidence shows that on August 11, 1948, Reaves was present in the office of the Shearer Motor Company, and that he signed an order for a car on that day. Koenig, at the trial, admitted testifying in a previous deposition that the papers regarding the transaction between his company and Reaves had been completed and signed before he and Reaves went to the office of the Southern Illinois Finance Company. He also admitted that an invoice was drawn up in the office of Shearer Motor Company, but, at the trial, denied that it was given to Reaves on August 12, 1948. He stated it was later mailed to Reaves.
When Reaves arrived at the office of the Ring-Wil Insurance Agency he was, according to defendant's testimony, in possession of an invoice which recited a sale from Shearer Motor Company to Reaves. It contained a description of the car, the motor number, serial number, sale price, and certain information with regard to accessories, license and insurance. In dictating the bill of sale the description of the car was taken from this invoice, which was lying on the table in the office where Strubel, Reaves, and the men from the Shearer Motor Company were at that time. This description in the bill of sale corresponds to the description of the car contained in plaintiff's petition.
From the testimony, we believe that a legitimate inference might be drawn that Reaves obtained this invoice from Shearer Motor Company, and that he was in possession of it and exhibited it to defendant at the Ring-Wil Insurance Agency at the time the bill of sale was executed.
It is next urged that defendant's evidence on the issue of estoppel is not clear, definite, unequivocal or convincing, and hence insufficient to establish the defense of estoppel under the decisions.
The trial court did not sustain the motion for new trial on the ground that the verdict was against the weight of the evidence. We are, therefore, precluded from weighing the evidence except to ascertain if the evidence in support of the defense was substantial. We have done this, and believe that defendant did produce substantial evidence in his favor on the issue of estoppel, and that said issue was for the jury.
It is also our conclusion that whether defendant acted in a reasonably cautious manner was also a question for the jury. Defendant produced sufficient evidence to submit the issue of estoppel to the jury. First Galesburg National Bank Trust Co. v. Reyelts, 306 Ill.App. 499, 29 N.E.2d 119; L. B. Motors, Inc., et al. v. Prichard, 303 Ill.App. 318, 25 N.E.2d 129; Illinois Bond Investment Co. v. Gardner et al., 249 Ill.App. 337. And, in our judgment, Instruction No. 2 was free of reversible error. The court, therefore, erred in sustaining plaintiff's motion for new trial.
The order appealed from is reversed, and the cause is remanded with directions to set aside said order and reinstate the verdict and judgment for defendant.
HUGHES and McCULLEN, JJ., concur.