630 F.2d 1287 (8th Cir. 1980), 79-1813, Bauer v. Uniroyal Tire Co.

Docket Nº:79-1813, 79-1826.
Citation:630 F.2d 1287
Party Name:Roland E. BAUER, d/b/a City Tire Service, a proprietorship, Appellant, v. UNIROYAL TIRE COMPANY, a division of Uniroyal, Inc., a Foreign Corporation and John Patterson, and Tires, Inc., a South Dakota Corporation, Appellees. Roland E. BAUER, d/b/a City Tire Service, a proprietorship, Uniroyal Tire Company, a division of Uniroyal, Inc., a Foreign Co
Case Date:September 26, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1287

630 F.2d 1287 (8th Cir. 1980)

Roland E. BAUER, d/b/a City Tire Service, a proprietorship, Appellant,

v.

UNIROYAL TIRE COMPANY, a division of Uniroyal, Inc., a

Foreign Corporation and John Patterson, and Tires,

Inc., a South Dakota Corporation, Appellees.

Roland E. BAUER, d/b/a City Tire Service, a proprietorship,

Uniroyal Tire Company, a division of Uniroyal,

Inc., a Foreign Corporation and John

Patterson, Appellants,

v.

TIRES, INC., a South Dakota Corporation, Appellee.

Nos. 79-1813, 79-1826.

United States Court of Appeals, Eighth Circuit

September 26, 1980

Submitted April 15, 1980.

Page 1288

Lee A. Tappe, Tappe & Vavra, P. C., Platte, S. D., for appellee, tires, inc.

Robert B. Anderson, Pierre, S. D., for appellees, Uniroyal Tire Co., a division of Uniroyal, Inc. and John Patterson.

Charles Rick Johnson, Johnson, Johnson & Eklund, Gregory, S. D., for appellant.

Before LAY, Chief Judge, ROSS, Circuit Judge, and LARSON, [*] Senior District Judge.

LAY, Chief Judge.

This appeal arises from an action for conversion of tires brought by Roland Bauer, d/b/a City Tire Service, against John Paterson, a representative of Uniroyal Tire Co., and Uniroyal Tire Co., a division of Uniroyal Inc., a foreign corporation. Uniroyal was a creditor of Tires, Inc., a South Dakota corporation, whose president was Edward Bauer, Roland's father. Both City

Page 1289

Tire Service and Tires, Inc. operated out of 314 South Central, Pierre, South Dakota. The account of Tires, Inc. with Uniroyal was delinquent and Uniroyal obtained consent from Edward Bauer to take back some of Tires, Inc.'s inventory of tires. In December 1974 Paterson removed Uniroyal brand tires from 314 South Central in Pierre, believing the tires to be the inventory of Tires, Inc. Thereafter, both Roland Bauer as well as Tires, Inc. made claim to the tires. Tires, Inc. claimed that more tires were taken than the indebtedness due, whereas Roland Bauer asserted that he owned the entire inventory and that Uniroyal had wrongfully removed the tires. Upon suit Uniroyal filed an answer and under Rule 22 of the Federal Rules of Civil Procedure filed, as a compulsory counterclaim, an interpleader suit alleging it had received $9,719.05 in tires in excess of Tires, Inc.'s indebtedness. On the basis of conflicting claims it moved to join Tires, Inc. and requested the court to determine who was entitled to the excess amount. The district court, the Hon. Andrew W. Bogue presiding, granted Uniroyal's motion to join Tires, Inc. in the interpleader claim. After a plenary trial, the district court found that Tires, Inc. owned the tires and that they were removed with the consent of Edward Bauer, president of Tires, Inc. Roland Bauer has appealed from these findings, asserting there is insufficient evidence to sustain the finding of ownership in Tires, Inc. at the time the tires were repossessed. In Uniroyal's interpleader suit, the court determined that Tires, Inc. was entitled to the excess of the value of the tires taken over its indebtedness to Uniroyal. The court also allowed prejudgment interest on the excess from December 13, 1974, to the date its judgment was entered. Uniroyal has filed a separate appeal on this award. We affirm the respective judgments of the district court.

Conversion.

The factual background is adequately set forth in the district court's memorandum opinion. The district court held that Bauer, as a separate entity, had failed to prove any ownership interest in the tires. Furthermore, the court ruled that possession and title to the tires was in Tires, Inc. This conclusion is adequately supported by the evidence and is not clearly erroneous.

The evidence showed and the trial court concluded that Tires, Inc. and City Tire Service were doing business as a single entity: (1) Uniroyal granted Tires, Inc. a protective charter to sell Uniroyal Zeta tires at retail and Tires, Inc. was the holder of that charter; (2) in its application for the charter, Tires, Inc. represented that 50% of its business was wholesale and 50% retail and it had facilities for selling tires at retail and for mounting them; (3) in dealings with Uniroyal representatives, Roland Bauer held himself out as a vice-president of Tires, Inc.; (4) Uniroyal and Tires, Inc., d/b/a City Tire Service, entered into an advertising expense sharing agreement that Uniroyal offered to its retail dealers; (5)...

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