Atlas Sec. Services, Inc. v. Git-N-Go, Inc.

• Decision Date: 29 April 1987
• Docket Number: INC,GIT-N-G,No. 13975,13975
• Citation: 728 S.W.2d 727
• Parties: ATLAS SECURITY SERVICES, INC., Plaintiff-Appellant, v., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 727

728 S.W.2d 727

ATLAS SECURITY SERVICES, INC., Plaintiff-Appellant, v. GIT-N-GO, INC., Defendant-Respondent.

No. 13975.

Missouri Court of Appeals,

Southern District,

Division One.

April 29, 1987.

Dee Wampler, Wampler, Wampler & Catt, Springfield, for plaintiff-appellant.

Leland C. Bussell, Dale L. Davis, Bussell, Hough, O'Neal, Crouch & Hall, Springfield, for defendant-respondent.

WILLIAM J. MARSH, Special Judge.

Plaintiff, Atlas Security Services, Inc. (Atlas), appeals from an $8,520.77 judgment upon a jury verdict for that amount in favor of defendant, Git-N-Go, Inc., on one of Git-N-Go's counterclaims. The jury found in favor of Atlas on Git-N-Go's counterclaim for breach of contract but no appeal was taken from that judgment. Atlas dismissed its petition against Git-N-Go prior to trial.

The evidence at trial reveals that Git-N-Go has operated a number of convenience stores in Springfield, Missouri, since 1970. Atlas sells, installs, provides and operates a variety of security or protective systems and services, and provided Git-N-Go burglar alarm services when Git-N-Go opened its first five stores in Springfield. In 1976, Git-N-Go decided to change its Springfield stores' security systems to those similar to, or the same as, the systems used in its Tulsa, Oklahoma stores. This involved Atlas obtaining and installing the necessary equipment and providing some monitoring of the systems' effectiveness. Git-N-Go paid Atlas for the equipment and its installation, and paid Atlas a monthly fee for monitoring the system and equipment in Git-N-Go's 23 stores, in accordance with the parties' written agreement covering each of the stores.

Differences between the parties arose concerning the effectiveness of the installations resulting in some changes to the systems by Atlas and some by a Tulsa company providing Git-N-Go security services there. Further differences or dissatisfactions on Git-N-Go's part resulted in its termination of monthly monitoring contracts with Atlas in November, 1979, and engagement of another security company for that purpose.

Atlas filed its petition for alleged breach of monitoring contracts in March, 1981, and amended petition in October, 1981. On or about July 27, 1983, while this case was pending, Atlas received a check in the mail in the amount of $8,520.77 directly from Git-N-Go's parent company in Tulsa. No release, settlement documents, or other explanation accompanied the check. Upon receipt of the check, Atlas' sales manager called Atlas' attorney and asked what should be done with the check. The attorney advised him to take the check to the bank on which it was drawn (Springdale, Arkansas), and to get a cashier's check for it. The sales manager did so immediately, with the knowledge and acquiescence of Atlas' president, who was also the sales manager's father-in-law. Atlas' usual practice was to deposit checks received in the course of business into its account. Atlas' evidence was that the amount of the check was "close, real close" to the amount allegedly due from Git-N-Go in principal plus accrued interest on the monitoring contracts. Atlas then dismissed its petition with prejudice on August 17, 1983.

The uncontroverted evidence clearly showed that Git-N-Go inadvertently issued and sent to Atlas the $8,520.77 check, and without intent to pay or settle Atlas' claim. Git-N-Go's accounts payable were all paid out of the office of its parent company, Hale-Hassle Co., located in Tulsa, Oklahoma. Hale-Hassle utilized a computerized system supported by human supervision and checking. When invoices were approved for payment, the invoice information was converted to computer numbers. Each vendor was assigned a five-digit number. When all of the relevant information and vendor number were placed in the computer, checks were generated in the amounts due or being paid to the various vendors. All such checks were verified against invoices to see that the vendor-payee and amount matched.

On July 25, 1983, when Git-N-Go had no account payable due Atlas, Atlas had an assigned vendor number of 04800. Git-N-Go did have an invoice due another vendor, Hartwell Oil Company, in the amount of $8,520.77. Hartwell's assigned number was 04880. In entering the information into the computer to pay Hartwell, Atlas' vendor number was erroneously fed into the computer. As a result, the check in the amount of $8,520.77 was made payable to Atlas (04800) rather than Hartwell (04880). On that day, the Hale-Hassle regular employee responsible for matching the invoices with the computer-generated checks was absent. His replacement failed to match the payee's name on the check with the name on the invoice, matching only the amount, and the check was erroneously mailed directly to Atlas.

Git-N-Go had no knowledge of the error until some 10 to 12 days later when Hartwell called to inquire about the delay in payment of its invoice. The Springdale, Arkansas bank verified Atlas' transaction with the check. Direct efforts by Git-N-Go and its attorney to recover the check, or its equivalent, from Atlas were fruitless. Git-N-Go's amended counterclaim, adding a count for conversion of the check and a count for money had and received to the original claim for breach of contract, allegedly arising out of the 1976 transactions between the parties, was then filed, tried, and is the focus of this appeal.

On appeal, Atlas' first point relied on claims that the trial court erred in overruling its motion for judgment on the pleadings directed to Git-N-Go's amended counterclaim alleging conversion of the check.

Appeal lies only from a final judgment. § 512.020; ¹ Spires v. Edgar, 513 S.W.2d 372, 373 (Mo. banc 1974). In order for a judgment to be final and appealable, it must dispose of all parties and all issues, except under certain limited circumstances not relevant here. Hill v. Boles, 583 S.W.2d 141, 147 (Mo. banc 1979); Citizens Elec. Corp. v. Campbell, 696 S.W.2d 844, 845 (Mo.App.1985). If a trial court sustains a motion for judgment on the pleadings, the judgment rendered may be a final appealable judgment. See, Madison Block Pharmacy v. U.S. Fidelity, 620 S.W.2d 343 (Mo. banc 1981). On the other hand, the trial court's order overruling Atlas' motion for judgment on the pleadings in this case was not a final appealable judgment. Kilgore v. Kilgore, 666 S.W.2d 923, 928 (Mo.App.1984). Cf. Wilson v. Hungate, 434 S.W.2d 580, 583 (Mo.1968). Atlas' first claim of error is denied.

In its second claim of trial court error, Atlas alleges that the trial court erred by submitting Git-N-Go's verdict directing instruction ² on its conversion claim against Atlas because the facts and law did not entitle Git-N-Go to proceed and recover on a theory of conversion of money represented by a general debt. This appears to be the gist of Atlas' motion for judgment on the pleadings.

Atlas makes no claim that the instruction is not simple, brief, impartial, free from argument, or that it submitted or required findings of detailed evidentiary facts. Rule 70.02(e). Atlas' argument appears to rest upon general statements of like import found in Dillard v. Payne, 615 S.W.2d 53 (Mo.1981); Anderson Electric Car Co. v. Savings Trust Co., 201 Mo.App. 400, 212 S.W. 60 (1919); United States Fidelity & Guar. Co. v. Mississippi V.T. Co., 153 S.W.2d 752 (Mo.App.1941); Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977), and R.H. Kobusch Furniture & Carpet Co. v. Loewenberg, 194 Mo.App. 551, 185 S.W. 747 (1916).

In Dillard v. Payne, supra, 615 S.W.2d at 55, the court stated the proposition that conversion does not ordinarily lie for money represented by a general debt, but applied the rule that when funds are placed in the custody of another for a special purpose, their diversion for other than such special purpose subjects the holder to liability in conversion.

In Anderson Electric Car Co. v. Savings Trust Co., supra, 212 S.W. at 61, that court held that where defendant collected and kept the proceeds of three checks plaintiff claimed to own, plaintiff had no claim for conversion where plaintiff's action was for conversion of money collected on the checks which was not in any manner described so as to be identified, following the rule that trover does not lie for money had and received for payment of debts, money being the subject of conversion only when it can be described or identified as a specific chattel.

United States Fidelity & Guaranty Co. v. Mississippi Valley Trust Co., supra, 153 S.W.2d at 756-7, suggests that where a guardian diverted a check, intended to be deposited in the guardianship account in defendant's bank, into his individual account with defendant and appropriated a substantial portion of the proceeds to his personal use, an action for the conversion of money charged to have been collected by the bank on a check does not lie. The court also noted that the relationship between a depositor and a bank is ordinarily that of a debtor and creditor.

Breece v. Jett, supra, 556 S.W.2d at 710-11, holds that conversion is not the proper remedy to recover on an ordinary debt nor is...