493 S.W.2d 673 | Mo. Ct. App. | 1973
Plaintiff filed a petition in replevin alleging the ownership and seeking the return of a John Deere No. 1010 crawler of the value of $3,500.00, together with damages at the rate of $50.00 per day for the taking and detention of the same. Defendant in his answer alleged he was the owner and entitled to possession of the crawler. A jury was waived, the cause was tried to the court, and a judgment was entered in favor of defendant, from which the plaintiff appeals. We affirm.
Defendant purchased the crawler from Heisel Equipment Company in 1969 for $4,563.36, by paying $1200.00 down and giving Heisel a security agreement for the‘ balance of $3,363.36. After making monthly installment payments the amount owed by defendant on April 5, 1971, was $948.69. On that day William F. Aubuchon, Jr., who had borrowed the money from his father, William M. Aubuchon, Sr.,
“April 22 1971
“To Whom It May Concern:
F.
“I William F. Aubuchon do hereby authorized, and appoint as my repersenta-tive (sic) one William M Aubuchon, relation father, to act on my behalf, to make any decision which needes (sic) to be made during my absence which is for the future, and immediate finical (sic) well being, both for my business, as well as my family, and any other concerned legal parties.
“This authorization to pertain to any assests (sic) which exist at the time. (Tools & equipment).
“This decision should be his responsibility only upon my absence.
“Signed
/s./ William F. Aubuchon
“Witness:.- William F. Aubuchon
“Witness:-- /s/Notary Public 4-22-71
/s/ R. H. Brown
:/s/ My com. Expires 10-4-72”
Plaintiff related that he had first observed the crawler when he drove by the farm of Aubuchon, Sr., on which it was sitting. He was unable to state the date other than to say that it was “quite a period of time,” around in the summer of 1971, before plaintiff contacted Aubuchon, Sr., by telephone, “the latter part of August,” 1971. He inquired of Aubuchon, Sr., whether the crawler was for sale, an agreement for a sale was reached, and on September 1, 1971, plaintiff paid Aubu-chon, Sr., $3,500.00 for the crawler, and Aubuchon, Sr., executed and delivered to plaintiff a Bill of Sale for the machine, signed by Aubuchon, Sr., and agreed to deliver the machine, which was then in the possession of Pointer. At the direction of plaintiff, Aubuchon, Sr., delivered the machine on September 3 or 4, 1971, to a repairman named Williams, situated in Lone-dell, because plaintiff wanted Williams to check it over and make certain repairs on the crawler.
Aubuchon, Jr., had never made any payment on his obligation to defendant other than the down payment of $984.69, and plaintiff had twice spoken to Aubuchon, Jr., about the obligation. Shortly before September 20, 1971, defendant learned from Aubuchon, Jr., that the crawler was in Lonedell. He thereupon had Aubuchon, Jr., sign the following instrument marked as defendant’s Exhibit C:
“Union, Mo.
“Sept. 20, 1971
“To: Donald Penrod
“You are hereby authorized to repossess John Deere Crawler tractor model # 1010 serial #11235 without any necessity to replevy same: and I further state that Harvey Pointer performed no work or services upon the same upon my authority or upon the authority of any one acting for me
“/s/ x William F. Aubuchon
“Witness James B. Hanson”
Armed with that instrument and the buy-sell contract signed by Aubuchon, Jr., defendant on September 22, 1971, obtained possession of the crawler from Williams upon payment of the cost of repairs Williams had made on the machine. Plaintiff’s replevin action followed on October 12, 1971.
There was evidence on plaintiff’s behalf that prior to paying Aubuchon, Sr., for the crawler, plaintiff had orally agreed to rent it to Michael Congardi, at $50.00 per day. Congardi, who testified he was present when plaintiff paid the $3500.00 to Aubu-chon, Sr., confirmed the rental agreement.
Since plaintiff’s action was one in replevin it was incumbent upon him to
Plaintiff does not base his right of recovery upon the authority given Au-buchon, Sr., to sell the crawler by plaintiff’s Exhibit 2, executed by Aubuchon, Jr., on April 22, 1971. Nor, we believe, could he plausibly do so. Assuming, without deciding, that that instrument was valid despite its vagueness and generality, by its terms it clothes Aubuchon, Sr., with authority only during the absence of Aubu-chon, Jr., and the evidence indicates that Aubuchon, Jr., had returned from South Dakota and was present in the area when the transaction between plaintiff and Au-buchon, Sr., occurred. Instead, plaintiff invokes the doctrine of equitable estoppel to support his right to recover, and argues that by reason of the conduct of Aubu-chon, Jr., he was estopped from asserting title as against the plaintiff; and that defendant stands in the shoes of Aubuchon, Jr. That conduct, as detailed in plaintiff’s brief, is that he knew Aubuchon, Sr., had taken possession of the crawler, did not seek or intend to regain possession of it, and in the meantime had executed plaintiff’s Exhibit 2, the supposed authorization. Certainly the purported authorization to Aubuchon, Sr., could not furnish the basis for an estoppel because Aubuchon, Sr., did not represent to plaintiff that he was selling the crawler to plaintiff pursuant to such authority. In fact, the evidence indicates that at the time of the transaction between plaintiff and Aubuchon, Sr., plaintiff had no knowledge of the existence of that instrument or that Aubuchon, Jr., owned the equipment.
Plaintiff cites Prouse v. Schmidt, Mo., 156 S.W.2d 919, as setting forth the criteria that must be met before an estop-pel will be invoked. We agree, of course, with the six tests enumerated in that decision, but when measured against the facts in the instant case it is obvious that plaintiff’s case falls far short of meeting the very first: “ * * * ‘There must be conduct- — acts, language, or silence — amounting to a representation or a concealment of material facts. * * * ” (156 S.W.2d 921) In the instant case there was no silence on the part of Aubuchon, Jr., because he had no knowledge that Aubuchon, Sr., was about to attempt to sell the crawler, and as the Supreme Court stated in that case (156 S.W.2d 921) one may be es-topped by silence only “ * * * when he is under a duty to speak * * Nor does plaintiff claim that Aubuchon, Jr., said anything to plaintiff which would create an estoppel; in fact, so far as the record before us shows, neither of them ever saw each other before they appeared at the trial.
Plaintiff’s evidence also falls short of meeting other requirements for an estoppel laid down in Prouse, supra, but a discussion of them would only serve to unduly lengthen this opinion.
It is an established principle that by a purchase a vendee acquires no better title than that of his vendor. International Harvester Co. of America v. Tyler Warehouse Co., Mo.App., 253 S.W. 400; P. R. Walsh Tie & Timber Co. v. Chester, P. & S. G. R. Co., 184 Mo.App. 26, 167 S.W. 614. In the instant case Aubuchon, Sr., had no title to the crawler, and consequently plaintiff acquired none from him by reason of his purported sale.
Accordingly, the judgment is affirmed.
. Despite the dissimilarity of the middle initials the parties in their brief referred to the father and son as Aubuchon, Sr., and Aubuchon, Jr., and we will do likewise.