ANDERSON, Presiding Judge.
This is an appeal by E. T. Swiney Motors, Inc., a corporation, from a conviction for violation of Section 4813, R.S.Mo. 1939, R.S. 1949, § 563.800, which section reads as follows: "Every person or persons, company, corporation or firm, and every agent of any person, persons, company, corporations or firm, who shall take or receive, or agree to take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise, for the forbearance or use of money or other commodities, any interest at a rate greater than two per cent per month, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days. Nothing herein contained shall be construed as authorizing a higher rate of interest than is now provided by law."
On or about March 25, 1949, Roy Caruthers purchased a 1939 Dodge automobile from the defendant, E. T. Swiney Motors, Inc., through its salesman, Roy Schwarzkopf. The sale price of the car was $595. A trade-in allowance of $245 was made for a 1937 Plymouth, owned by Caruthers, which left a balance of $350 due on the purchase price. For this balance, and other charges, Caruthers gave his note secured by a chattel mortgage on the car purchased. This note and chattel mortgage were made in favor of Swiney Motors, Inc., in the total sum of $500.25, payable in fifteen monthly installments of $33.35 each. The note and installments were sold by Swiney Motors, Inc., to the Appleman Finance Company for $350. Caruthers testified that at the time of the sale Schwarzkopf told him he would receive a fifty dollar deductible collision insurance policy, and insurance against fire and theft. Caruthers further testified that Schwarzkopf also told him at the time that Swiney Motors "financed their own deals." Schwarzkopf denied making this latter statement.
At the time the sale was made Caruthers was given a bill of sale (State's Exhibit 1), the material portions of which are as follows:
"Swiney Motor, Inc. DeSoto — Plymouth
"Sold to Roy Caruthers St. Louis, Mo., March 25, 1949. Address: 3311 N. 11th "Salesman: Schwarzkopf Terms: T P "One Used Dodge Automobile ......... Selling Price $595.00
"Balance Due on Down Payment Total Selling Price ............. 595.00 Down Payment .................... 245.00 Balance to Be Financed .......... 350.00 Carrying Charges, Inc. Ins. ..... ------ Total Balance ................... ------ 15 Notes @ ...................... 33.35
"Trade-in Allowance $245.00 Make Ply Model Sedan
"Roy CaruthersFlorence Caruthers Signature of Purchaser."
Several days later Caruthers received through the mail a "Car invoice" (State's Exhibit 5) from the E. T. Swiney Motors, Inc. The material portions of this exhibit are as follows:
"Car Invoice E. T. Swiney Motors, Inc. No. 1072 3435 South Kingshighway Blvd. Hudson 9200 St. Louis 9, Missouri
Sold to: Mr. Roy Caruthers Date: March 25, 1949 Address: 3311 North 11th Street St. Louis 7, Missouri
Salesman: Roy Schwarzkopf
-------------------------------------------------------------------------- New or Key Make Model Used Serial No. Motor No. No. 1939 Dodge 2 Door Sedan -------------------------------------------------------------------------- Dodge Used D11-164484 ------------------------------------------------- Insurance Coverage Includes Price of Car $595.00 Transportation Charge Sales Tax Fire and Theft ------- Delivered Price
Collision — Amount Deductible Extras: Optional Equip. Access.
Public Liability — Amount Sales Tax on Extras ------- Total Cash Price 595.00
Property Damage — Amount Cost of Financing (incl. insurance) ------- Total Time Price =======
Settlement: Deposit Cash on Delivery Used Car: 1937 Plymouth Type 4 Door Sedan 245.00 Serial No. Motor No. Payments: 15 @ $33.35 350.00 Appelman Finance ------ Total 595.00
It will be observed that on the foregoing exhibit no figures were inserted on the line provided for the "cost of financing, including insurance." Also, that no figures were inserted on the line designating "Total Time Price."
At the trial, the State also introduced State's Exhibit 4, which was produced by the defendant. This exhibit was supposed to be a carbon copy of the "car invoice" (State's Exhibit 5) which was mailed to Mr. Caruthers. On said Exhibit 4 there is extended, opposite "Cost of Financing (incl. insurance)", the sum "$150.25", and opposite "Total Time Price" the sum "$745.25." Also in Exhibit 4, the figure opposite "Payments: 15 @ $33.35" is accurately carried out as being $500.25. Mr. Swiney, President of Swiney Motors, Inc., when asked how he accounted for the difference between State's Exhibit 4 and State's Exhibit 5, answered: "Office detail * * * I am not familiar with office details."
Subsequently, Caruthers received a payment book from the Appleman Finance Company calling for fifteen monthly payments of $33.35 each, commencing on the 25th of April, 1949. All payments were thereafter made by Caruthers to the finance company. Caruthers also received an insurance policy covering the Dodge sedan against fire, theft and windstorm, the total premium being $8.75. On the face of this policy, under the legend "Actual Cost When Purchased, Including Equipment," appear the figures "$595"; and, under "Encumbrance" appears "$500.25." The space provided in the policy for insertion of the amount of collision coverage is blank, hence there was no collision insurance under the policy.
The term of the insurance policy was specified as from March 25, 1949, to June 25, 1950. The named insured was Roy W. Caruthers. The policy also provided that any loss under the policy would be payable to the insured and Appleman Finance Company. The face amount of insurance for each form of coverage was $450.
On cross-examination, Caruthers testified he never made any inquiry of the E. T. Swiney Motors, Inc., or Appleman Finance Company concerning collision insurance, and that he did not have any knowledge as to whether or not the Appleman Finance Company was holding a policy of collision insurance for him. Caruthers testified that payments were made exclusively to the Appleman Finance Company; that he never returned to Swiney Motors to make a complaint about the purchase of the car; and that he had no dealings with anyone at Swiney Motors other than Mr. Schwarzkopf.
Mrs. Caruthers also stated that all payments were made to the Appleman Finance Company, and that nothing was paid to Swiney Motors.
Erwin G. Schubkegel, First Assistant Comptroller and Budget Director for the City of St. Louis, being first qualified as an expert on figures, testified, in answer to a hypothetical question, that an individual owing a balance of $350, plus $8.75 for insurance, or a total of $358.75, who executed a note therefor in the sum of $500.25 by the terms of which be would be required to pay $33.35 per month for fifteen consecutive months, would be charged $92.22 in excess of two per cent per month. He stated that at two per cent per month the interest on a debt of $358.75, payable in monthly installments of $33.35, would be the sum of $49.28.
Schwarzkopf testified that he got the amount of the monthly payments from a book which had been furnished him by his employer. These books were furnished to the defendant company by the finance companies. The witness was shown defendant's Exhibit A, which was a book furnished by the Appleman Finance Company, and testified that it showed that in financing a balance of $350 there were monthly payments called for of $33.35, which financing plan was supposed to include insurance against fire, theft and collision, with a $50 deductible clause. The witness further testified that he advised Caruthers of the foregoing facts with reference to the insurance. He further stated that he did not know the cost of the insurance that Caruthers was supposed to have received, or what portion of the payments was for insurance and interest.
On cross-examination, Schwarzkopf stated the difference between $350 and $500.25 represented interest and collision insurance. He further testified:
"Q. You have been in the game for 29 years, well, you tell what, just what the total insurance and interest, what is the rate of interest? A. I don't know.
* * * * * *
"Q. * * * does it tell right there what insurance is covered? A. Right here in the book.
"Q. Read that, will you? A. Customary coverage. Customary coverage in reputable companies is included.
* * * * * *
"Q. Why didn't you put in there, the figures about the cost of financing and insurance? A. I have no authority to.
"Q. You don't? A. Because I don't represent the insurance companies, I represent Swiney Motors.
* * * * * *
"Q. There's a place there for cost of financing, there? A. Yes, sir.
"Q. You left it blank, didn't you? A. Yes, sir.
"Q. Why? A. We never fill it in."
Mr. E. T. Swiney, President of the defendant company, testified that his company had no connection, financial or otherwise, with the Appleman Finance Company other than that the latter discounted some of defendant's notes and mortgages. He stated that defendant received nothing from the finance company except the balance due it on the sale price of the car, which was $350.
Appellant contends that the court erred in overruling defendant's demurrer to the evidence at the close of the case, for the reason that the State failed to offer sufficient evidence to warrant a conviction of the defendant.
Even though the transaction in the case at bar was a bona fide sale of a chattel, if it should appear that an amount was charged as interest on the balance due in excess of the lawful rate, and which was not a part of the consideration for the sale, there would be a violation of the statute under which this prosecution was brought, Section 4813, R.S.Mo. 1939. See Mitchell v. Griffith, 22 Mo. 515.
It was shown that by the terms of the sale the cash price of the automobile in question was $595, and that a trade-in allowance of $245 was made for a used car, leaving a balance due on the purchase price of $350. The State's evidence also shows that as a part of the transaction Caruthers was to pay for and receive a policy of insurance to insure him against the perils of fire, theft and collision. The premium on the fire and theft insurance amounted to $8.75, but the cost of the collision insurance, which Caruthers did not receive, was not shown. It was shown, however, that the premium for the insurance was a part of the carrying charges. The evidence further shows that Caruthers executed his note in favor of E. T. Swiney Motors, Inc., in the amount of $500.25, which represented the balance due plus carrying charges amounting to $150.25.
The amount of the interest charged as a part of the carrying charge is not shown. Nor is there shown the amount of any other item, if any, which might have legitimately been charged as part of the carrying charges under the decision of General Motors Acceptance Corporation v. Weinrich, 218 Mo.App. 68, 262 S.W. 425.
In this state of the record, it is impossible to determine whether interest in excess of two per cent. a month was charged for the forbearance of the money due on the unpaid purchase price of the automobile in question. The burden of proof was on the State to show that an amount of interest was charged in excess of that allowed by the statute. If Caruthers did not receive the insurance he contracted for he perhaps has a civil action against appellant for money had and received by it in the amount paid by Caruthers for said item, but we fail to see how such amount could be considered as interest in ascertaining whether there had been a violation of Section 4813, supra.
Since the State failed to sustain its burden of proof in this case, the judgment of conviction is reversed.
McCULLEN and BENNICK, JJ., concur.