Beaver Products Co. v. Voorhees

• Decision Date: 29 February 1924
• Docket Number: 11,788
• Citation: 142 N.E. 717,81 Ind.App. 181
• Parties: BEAVER PRODUCTS COMPANY v. VOORHEES
• Court: Indiana Appellate Court

142 N.E. 717

81 Ind.App. 181

BEAVER PRODUCTS COMPANY v. VOORHEES

No. 11,788

Court of Appeals of Indiana

February 29, 1924

From Clinton Circuit Court; Earl B. Stroup, Judge.

Action by Beaver Products Company against Richard D. Voorhees. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Van Brunt & Harker, for appellant.

Thomas M. Ryan, for appellee.

OPINION

NICHOLS, J.

Action by appellant for damages for conversion. The only error assigned is the action of the court in sustaining appellee's demurrer to the complaint. It is averred therein that on and prior to February 24, 1921, the Vulcanite Company was the owner of fifty squares of shingles which it shipped on said date to appellee, such shipment being intended to fill an order from appellee, but by mistake of said roofing company, the shingles so shipped were not the kind ordered. Thereupon appellee wrote to said roofing company stating that the shingles were not the kind ordered, and that he would sell them for said company or it could move them elsewhere, with the suggestion that he preferred them moved elsewhere in order to get them out of the way. Said roofing company consented to the proposition of appellee to sell said shingles for it, and permitted them to remain in his possession that he might attempt to sell them. On May 5 1922, said roofing company wrote a letter to appellee from which we quote as follows: "We presume that you would like to get rid of these fifty squares of shingles and we would suggest that you kindly arrange to ship them to our company at Chicago, and when they are received we will arrange to pass credit to your account of $ 270.65, which is the amount charged against you on these fifty squares." Upon receipt of this letter, appellee in answer thereto wrote to said roofing company as follows: "We sold these fifty squares on a large barn in the country here although the party has not ordered them out yet, but he expects to start reroofing now within the next few days. When your salesman was here some few weeks ago he said that he had orders to sell these shingles at $ 4 per square in order to clean up this old account, and we sold them to this farmer on that basis, and besides have to deliver them ten miles in the country. It is impossible for us to ship them to Chicago since they are sold here. * * * We trust this will meet with your approval and as soon as they are delivered we will mail you a check for the $ 200." On May 28, 1922, said shingles were destroyed by fire while yet in the possession of appellee, by reason of which, the roofing company was damaged in the sum of $ 350. Thereafter said roofing company assigned its assets, including its claim against appellee as above set out, to appellant, and it is now the owner thereof and demands judgment for $ 350.

It is appellant's contention that the failure of appellee to ship the shingles to it as requested in its letter amounted to a conversion thereof for which appellee is liable in damages. But we are not impressed with appellant's contention. Conversion is...