Aylesbury Mercantile Co. v. Fitch
| Decision Date | 12 November 1908 |
| Citation | 99 P. 1089,22 Okla. 475,1908 OK 214 |
| Parties | AYLESBURY MERCANTILE CO. v. FITCH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.
[Ed Note.-For other cases, see Trover and Conversion, Cent. Dig §§ 1, 2; Dec. Dig. § 1. [*]
For other definitions, see Words and Phrases, vol. 2, pp 1562-1569; vol. 8, p. 7618.]
In a case where a retail merchant becoming indebted to a wholesaler executed a note therefor securing its payment by a chattel mortgage on his stock, and a contemporaneous written agreement under which he and his creditor entered jointly into possession of the stock for the purpose of selling the same at retail to liquidate the debt, the sale of a portion of such stock at prices less than its value, or the negligent use of the unsold portion, by such creditor while so in possession, or the unauthorized exclusion of such debtor from the store except during business hours, when he returned and assisted in conducting the business under the contract, would not constitute a cause of action for conversion of such stock, but one for a breach of contract.
[Ed Note.-For other cases, see Trover and Conversion, Dec. Dig. § 5. [*]]
Where, in such a case, the creditor subsequently takes exclusive possession of and appropriates the stock of goods without action, or by replevin under the clause of the chattel mortgage, granting such privilege in certain contingencies, the same being taken over the protest and against the will of the debtor, such taking would constitute a conversion of the stock for which the creditor would be liable, where at the time either the debt had been extinguished or the contingency provided for had not lawfully arisen.
[Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 5. [*]]
Where, in such a case, the property is returned to and accepted by the debtor prior to the beginning of the action, this fact is to be considered in mitigation of any damages recoverable.
[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 277; Dec. Dig. § 58. [*]]
If the property be wrongfully taken and is on the order of the court placed in the hands of a receiver, the measure of the owner's damages for loss of goods or depreciation in value is the difference between the market value thereof at the time of the taking and their value at the time the receiver comes into possession.
[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 260, 261; Dec. Dig. § 44. [*]]
Causes of action in tort may be joined in separate counts in the same petition with causes of action in contract, when they all arise out of the same transaction or transactions connected with the same subject of action, and affect all the parties to the action.
[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 469-489; Dec. Dig. § 47. [*]]
Error from District Court, Kingfisher County; C. F. Irwin, Judge.
Action by the Aylesbury Mercantile Company against H. C. Fitch. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
C. H. Brooks, P. S. Nagel, and Mathew J. Kane, for plaintiff in error.
Bradley & Bradley, for defendant in error.
The controversy in this case grows out of a transaction between plaintiff in error, plaintiff below, and the defendant in error, defendant below, in dealing with a stock of general merchandise, located in the town of Hennessey, Okl. Prior to the making up the issues in the pleadings, the case was submitted to a referee with authority to settle the issues, take the evidence, and report with findings of fact and conclusions of law. This reference on the part of the court was made with the consent of both parties to the action. The referee acted in accordance with the reference, and the record made before him, now before us, covers nearly 700 pages of matter, consisting of pleadings, exhibits, and evidence. He found for the defendant and against the plaintiff on all the issues, made his report to the district court, which, after hearing the exceptions urged thereto by the plaintiff, overruled them and confirmed the report. Plaintiff thereupon took the case by proceedings in error to the Supreme Court of the territory of Oklahoma, and the same is now before us by virtue of our succession to that court under the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), and the schedule to the state Constitution (Bunn's Ed. §§ 449-493).
In view of the fact that we are unable to agree with the referee in certain findings of fact, which we regard as not reasonably supported by the evidence, and which, in our judgment, are controlling in the case, as on these were based his conclusions of law, we briefly state the facts as we find them to be shown by the evidence in the case, which evidence is nearly, if not quite, uncontradicted. All of the record and evidence on which he acted was returned by him and made a part of his report, and is now before us. The contracts under which the parties acted were in writing, and are before us for our consideration, just as they were before the referee. Moore on Facts, vol. 2, § 1278; Faulkner v. Simms, 68 Neb. 299, 89 N.W. 171, 94 N.W. 113.
Prior to November, 1901, H. L. Fitch, a gentleman somewhat advanced in years, owned and was in possession of a stock of general merchandise in the town of Hennessey, Okl. He was indebted to a local bank in the sum of $175, and to plaintiff in the sum of $600. While this condition existed, and in the fore part of November, 1901, he transferred by bill of sale the said stock of goods to his son, H. C. Fitch, this defendant, and, on making the said transfer, delivered to him the possession thereof. On this taking place, the bank attached the stock of goods for its debt as the property of H. L. Fitch. The store was closed and placed in the hands of the sheriff, who was invoicing it when W. A. Storey, vice president and credit man of plaintiff, the Aylesbury Mercantile Company, appeared on the ground for the purpose of looking after and protecting the debt due his house. Finding the store closed and the stock of goods in the hands of the sheriff, he proposed to defendant, H. C. Fitch, then the owner thereof, that he would take up and pay off the indebtedness of the bank, release the stock, add this to the amount then due from the father, the payment of which had been assumed by the defendant, and take from him a note covering the entire amount, to be secured by a chattel mortgage on the stock. This was accordingly done, and the defendant executed a note covering the whole indebtedness, with some other charges, in the sum of $836.95, to the plaintiff, dated November 12, 1901, drawing 8 per cent. interest, due six months after date, the payment of which he secured by a chattel mortgage on all of the merchandise going to make up the stock, as well as the furniture and fixtures. This mortgage contained the usual covenants of instruments of that character, and provided that, if the party to whom it was given should at any time deem itself insecure for any cause, it should be lawful for it to take the property wherever the same could be found, and dispose of it at public auction or private sale, without notice, etc. At the same time, and as a part and parcel of the same contract, the plaintiff and the defendant entered into a writing, entitled "Contract and Agreement," which, owing to its importance in this controversy, we copy in full. It is as follows:
November 16, 1901, under the arrangement thus made, plaintiff and defendant opened the store, after making an invoice of the goods contained therein, and began selling the same at retail, which continued until the 19th day of December, 1901 or for approximately...
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