Alexander v. Link's Landing, Inc.

• Decision Date: 23 July 1991
• Docket Number: No. 16914,16914
• Citation: 814 S.W.2d 614
• Parties: Edward J. ALEXANDER, Appellant, v. LINK'S LANDING, INC., Respondent.
• Court: Missouri Court of Appeals

Page 614

814 S.W.2d 614

Edward J. ALEXANDER, Appellant, v. LINK'S LANDING, INC., Respondent.

No. 16914.

Missouri Court of Appeals,

Southern District,

Division One.

July 23, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Aug. 14, 1991.

Rexford H. Caruthers, Patricia N. McCloskey, Caruthers, Herzog, Crebs & McGhee, St. Louis, for appellant.

Charles E. McElyea, Philip J. Morgan, Phillips, McElyea, Walker & Carpenter P.C., Camdenton, for respondent.

PER CURIAM.

The claims in this judge-tried case were asserted in the first amended petition of plaintiff Edward J. Alexander against defendant Link's Landing, Inc., and the latter's first amended counterclaim against plaintiff.

Plaintiff's pleading contained three counts. Count I sought rescission of a contract in which plaintiff agreed to buy a boat from defendant. The ground for rescission was an alleged misrepresentation. Count II sought rescission of the same contract because defendant failed to assign the manufacturer's statement of origin of the boat to plaintiff. Count III sought actual and punitive damages for defendant's alleged conversion of the boat some 17 months after plaintiff had taken possession of it under the purported contract.

Defendant's first amended counterclaim sought $3,734.10 (plus interest) from plaintiff for sundry goods and services allegedly supplied plaintiff by defendant.

The trial court received evidence, made comprehensive findings of fact and conclusions of law, and entered judgment awarding plaintiff $10 "nominal damages" and $500 punitive damages on Count III of his first amended petition. The judgment granted no relief on Counts I and II, ruling they were "in the alternative to Count III." The judgment awarded defendant $1,155.88 on its first amended counterclaim.

Plaintiff appeals, but assigns no error regarding the award on the counterclaim. Plaintiff complains the damages awarded him on his conversion claim were too low. He also avers the trial court erred by declining to hold defendant's failure to "fully complete the manufacturer's statement of origin on the boat voided the assignment of title" to him. ¹

At the conclusion of the evidence, the trial court invited the parties to submit proposed findings of fact and conclusions of law. Defendant submitted extensive findings of fact. Plaintiff agreed with most of them. Our account of the facts begins with those on which the parties agreed.

Defendant is a corporation engaged in the business of selling, servicing and storing boats. At all times pertinent herein, plaintiff had a Missouri license "to act as a dealer in the acquisition and sale of boats."

On or about May 22, 1987, plaintiff, as buyer, and defendant (acting by David Logsdon, its general manager), as seller, signed a "sales agreement" for a Trojan boat. In partial payment, plaintiff traded in a Century boat, leaving a balance of $46,067 due defendant. Plaintiff arranged for a loan from Bank of Lake of the Ozarks to pay this sum "or a portion thereof."

A manufacturer's statement of origin to the Trojan boat showed it was a new boat and its first transfer in ordinary trade and commerce was from the manufacturer to defendant. This document was delivered to the bank, but the assignment form on the reverse side was neither filled in nor signed. Simultaneously, the bank paid defendant the balance of the purchase price. The statement of origin was never delivered to the "license bureau" for registration of the Trojan boat in plaintiff's name.

The Trojan boat remained at defendant's marina. During the 1987 summer, plaintiff and his employees used the Trojan boat, and while doing so displayed plaintiff's "dealer number" on it.

In May, 1988, plaintiff's bank loan was "renewed." A bank official noticed the manufacturer's statement of origin had not been signed by a representative of defendant. The following month it was signed by Logsdon at the bank, but his signature was not notarized.

Plaintiff and his employees used the Trojan boat during the 1988 summer. It remained at defendant's marina. Plaintiff never paid any storage charges.

Plaintiff never attempted to sell the Trojan boat, but insisted defendant try to do so. Defendant began trying in the summer of 1987, and attempted to keep the boat clean to facilitate the sale.

As of September 1, 1988, plaintiff owed defendant $1,155.88 for sundry goods and services.

In October, 1988, defendant removed the Trojan boat from the water and placed it in storage. At that time, plaintiff still owed defendant $1,155.88 on account.

If someone had a delinquent account with defendant, it was defendant's normal practice to prevent the debtor from using his boat, and defendant would do no additional work on it unless the account was paid. One of the reasons defendant removed the Trojan boat from the water in October, 1988, was because plaintiff's account was delinquent. Additionally, defendant automatically "winterized" boats when it appeared necessary, even though customers did not authorize it.

The trial court found other facts besides those on which the parties agreed. Two pertinent to this appeal are set forth below. Both are supported by substantial evidence.

The fair market value of the Trojan boat on October 1, 1988, was $80,000.

Defendant's lawyer advised plaintiff's lawyer by letter of June 16, 1989, that plaintiff could take possession of the Trojan boat and use it.

In addition to those findings, we note plaintiff admitted at trial he knew about the letter of June 16, 1989, from defendant's lawyer regarding possession of the Trojan boat.

On plaintiff's conversion claim, the trial court ruled:

"... Defendant did convert the ... Trojan [boat] to its own use from October, 1988 to June, 1989. Defendant did not have a right to retain possession of the boat in question until its statement was paid.... However, Plaintiff has failed to show that he suffered any damages other than nominal.

... Defendant's conduct in refusing to allow Plaintiff to take possession of said boat during October of 1988 was willful, wanton or malicious and Plaintiff is entitled to punitive damages. However, punitive damages are tempered by the facts that Defendant was attempting to sell the boat for Plaintiff and restricted use of the boat to keep it clean and facilitate the sale. Further, one cannot use the boat in the winter months. Plaintiff was allowed use of the boat in June, 1989."

Plaintiff's first point relied on is:

"The trial court erred when it failed to award [plaintiff] damages for conversion measured by the reasonable market value of the converted property on the day of conversion plus interest therefrom."

Plaintiff points out the measure of damages in conversion suits is generally the reasonable market value of the property at the time of conversion. Farmers & Merchants Bank of St. Clair v. Borg-Warner Acceptance Corp., 665 S.W.2d 636, 639 (Mo.App.1983); Weldon v. Town Properties, Inc., 633 S.W.2d 196, 198 (Mo.App.1982); Breece v. Jett, 556 S.W.2d 696, 709 (Mo.App.1977).

Defendant responds by directing us to Vetter v. Browne, 231 Mo.App. 1147, 85 S.W.2d 197 (1935). There, the owner of an automobile claimed he parked it on a parking lot and surrendered possession to agents of the lot owner, and when he returned for the automobile several hours later the lot owner refused to surrender possession. The automobile owner recovered the automobile five months later. Regarding his measure of damages, the opinion explained:

"Where an automobile has been converted by another and the vehicle has thereafter been returned and accepted by the owner thereof, the measure of damages is the difference between the value of the car at the time of the conversion and the value of the car at the time of the return, plus the reasonable value for the loss of the use of such vehicle during the period of time that the owner has been deprived thereof. (Citations omitted.)" 85 S.W.2d at 199.

Plaintiff maintains that in order to mitigate damages, the tort-feasor must prove return of the property and its acceptance by the rightful owner. Plaintiff asserts he "never accepted return of the tendered [Trojan] Boat." Consequently, insists plaintiff, defendant's attempt to tender return of the boat cannot be considered in mitigation of damages.

The positions of the parties throughout this saga have been prevaricative. In Count III of his first amended petition, plaintiff pled he is the owner of the Trojan boat. At trial, plaintiff disclosed he paid no sales tax on it. Asked why, he responded: "I'm a boat dealer.... And I didn't purchase the boat."

Later, plaintiff testified he acquired the Trojan boat for pleasure and business. He avowed he never tried to sell it, yet he stipulated that he insisted defendant try to sell it.

Elsewhere in his testimony, plaintiff said that on or about May 22, 1987 (the date on the "sales agreement"), Logsdon said he wanted the Trojan boat back in August, 1987, and "he would return the money that the bank has given him for that boat, for the use of that boat." Plaintiff quoted Logsdon as saying he did not sign the manufacturer's statement of origin because "he wanted to sell that boat as a new boat in August or any time prior to August."

If this means (a) Logsdon intended to return to plaintiff the money defendant received from the bank in payment of the balance due on the purchase price of the Trojan boat, and (b) defendant would sell the Trojan boat and keep the proceeds, plaintiff would end up with neither the Trojan boat nor the Century boat he traded in--a bizarre result that would leave plaintiff with a substantial loss.

If it means (a) Logsdon intended to return to the bank the money defendant received from it in payment of the balance due on the purchase price of the Trojan boat, and (b) defendant would sell the Trojan boat and keep the proceeds, plaintiff would still end up with neither the Trojan boat nor the Century boat, again...