Dunham v. Scafe

Plaintiff proceeded in replevin to recover the possession of an automobile alleged to be of the value of $1750. The issues were submitted to a jury, and verdict returned for defendant. Plaintiff filed motion for a new trial, but this was overruled, and he brings the cause to this court by appeal.

The petition and affidavit are in the usual form, the defendant in his answer pleaded ownership of the automobile. Plaintiff was a dealer in automobiles in Webb City and defendant lived in Joplin. Plaintiff sold defendant an automobile and took in payment three notes and some oil stock, and a small check. The three notes aggregating $1652.50 were given by farmers in McDonald county and were payable to defendant. When plaintiff and defendant consummated the deal on the automobile defendant endorsed the notes without recourse and delivered them to plaintiff. The notes were given in September and October, 1918, and each was due one year after date and bore 8 per cent interest. The transaction by which plaintiff became possessed of the notes, and defendant the car, was in March, 1919. The next day or shortly after plaintiff delivered the automobile to defendant, he, plaintiff, accompanied by his banker and another, went to McDonald county to see about the value of the notes. He ascertained that the notes were perhaps valueless, and on his return he tendered back the notes and other things received from defendant in payment for the automobile, and demanded the return of the automobile. Defendant refused to return the automobile and plaintiff proceeded in replevin, and obtained possession under the writ. The jury fixed the value of the automobile at $1750, and defendant's damages at one dollar.

Plaintiff relied upon alleged misrepresentations by defendant as to the solvency of the makers of the notes, and the value of the security with each note. The notes were given by farmers in the purchase of sheep from defendant. Each note was signed by the individual giving it, and a mortgage was given with each note on the sheep purchased and their increase, and also on some other personal property. The sheep had practically all died at the time plaintiff took the notes, and the other security was practically valuless because of prior incumbrances. The makers had but little, if anything, above exemptions. If defendant made the representations as testified to by plaintiff, then he should prevail. There are many circumstances in addition to much direct evidence that defendant grossly misrepresented the solvency of the individual makers of the notes and the value of the security with each note, but defendant gave positive and direct evidence to the contrary. The jury is the final judge of the facts where there is substantial evidence to support the verdict, and an appellate court in the absence of prejudicial error will not and should not interfere. Authorities to this effect are legion, and courts no longer lengthen opinions by citing authorities to support such well known rules of law. Plaintiff got all that was coming to him in the instruction and he makes no complaint about instructions in his brief, and only in a general manner in his motion for new trial. Plaintiff confines his brief to an argument which would be more appropriate if addressed to a jury. Plaintiff's abstract is defective and there are no assignments in accordance with our rules, and defendant challenges the sufficiency of both the abstract and brief. But in view of our conclusion on the merits, it is not necessary to determine the questions raised concerning the abstract and brief. The judgment below is affirmed.

Sturgis, P.J., and Farrington, J., concur.