Belford Trucking Co. v. Zagar
| Decision Date | 30 December 1970 |
| Docket Number | No. 70--331,70--331 |
| Citation | 243 So.2d 646 |
| Parties | BELFORD TRUCKING CO., Inc., Appellant, v. John Rudolph ZAGAR, Appellee. |
| Court | Florida District Court of Appeals |
Phillip G. Newcomm, of Shutts & Bowen, Miami, for appellant.
Albert Yurko, Orlando, for appellee.
Appellant-defendant, Belford Trucking Company, Inc., appeals a final judgment entered on a jury verdict in favor of appellee-plaintiff, John Rudolph Zagar, in an action for conversion of $6,000 United States currency. We reverse.
Plaintiff, a truck driver, entered into an agreement whereby he was to drive a truck-tractor for defendant, a commercial carrier, and receive a percentage of the freight charges as compensation. The parties operated under the agreement for a number of months, during which time plaintiff made a down payment on the tractor, made monthly payments as agreed, and paid certain expenses for operation of the truck. Defendant trucking company received all the proceeds from the truck's operation and charged to plaintiff's account advances and expenditures for items properly chargeable to him under the terms of the agreement. The agreement was terminated when defendant's accounts showed that plaintiff had overdrawn his account by receiving more advances and incurring more expenses than the share of profits he was entitled to receive.
Subsequently, plaintiff instituted this conversion action, alleging that defendant had wrongfully deprived or converted to its own use legal currency rightfully belonging to plaintiff. The jury returned a verdict for $6,000 in favor of plaintiff, rejecting defendant's counterclaim for the overdrawn account. Judgment for the plaintiff was entered. This appeal followed.
The primary thrust of this appeal is whether the evidence supported an action for conversion.
The modern action of conversion arose out of the common law action of trover where lost goods had been found and converted to the finder's own use. Pearl Assur. Co. v. National Ins. Agency, 1943, 150 Pa.Super. 265, 28 A.2d 334, reh., 151 Pa.Super. 146, 30 A.2d 333. Trover was expanded into other areas by the use of fictions to treat items as 'lost' and 'found.' W. Prosser, Torts 79 (1964). Today, conversion is defined as an act of dominion wrongfully asserted over another's property inconsistent with his ownership of it. Goodrich v. Malowney, Fla.App.1963, 157 So.2d 829.
What constitutes 'property' which may be the subject of conversion has been the subject of considerable discussion, especially where the property alleged to have been converted consists of money or intangibles.
There is nothing in the nature of money as personal property which makes it an improper subject of conversion so long as it consists of specific money capable of identification. Russell v. The Praetorians, 1947, 248 Ala. 576, 28 So.2d 786. To be a proper subject of conversion each coin or bill need not be earmarked, but there must be an obligation to keep intact or deliver the specific money in question, so that such money can be identified. Shahood v. Cavin, 1957, 154 Cal.App.2d 745, 316 P.2d 700. Money is capable of identification where it is delivered at one time, by one act and in one mass, or where the deposit is special and the identical money is to be kept for the party making the deposit, or where wrongful possession of such property is obtained. Hazelton v. Locke, 1908, 104 Me. 164, 71 A. 661. An example is where a specific sum of money is to be held in constructive trust until the occurrence of a specified event. Markel v. Transamerica Title Insurance Company, 1968, 103 Ariz. 353, 442 P.2d 97.
Accordingly, Florida courts have held money to be a proper subject of conversion where a sum of money sealed in an addressed envelope was misdelivered, (Southern Express Company v. Van Meter, 1880, 17 Fla. 783), and where a specified sum of money in a...
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Deming v. Nationwide Mut. Ins. Co., No. 17459.
...is inappropriate where the basis of the suit is a contract, either express or implied." (Citations omitted.) Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla.App. 1970). Consistent with this rule, in our case law sustaining a cause of action wherein money was the subject of the conver......
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...application of money sent by debtor to satisfy debt other than one for which money earmarked). Neither Belford Trucking Co. v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1970) (failure to pay an indebtedness on an open account is not conversion), nor Armored Car Service, Inc. v. First National Bank......
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Dall. & Lashmi, Inc. v. 7-Eleven, Inc.
...(See Compl. ¶¶ 58.) Because "[an] obligation to pay money may not be enforced by a conversion action," Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla.Dist.Ct.App.1970) (citing Dawkins v. Nat'l Liberty Life Ins. Co., 263 F.Supp. 119, 121 (D.S.C.1967) ; see also Cusano v. Klein, 280 F......
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U.S. v. Bailey
...(Fla. 3rd DCA 1980) ("conversion evolved from the common law action of trover") (internal citation omitted); Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla. 4th DCA 1970) ("The modern action of conversion arose out of the common law action of trover"). Trover afforded an owner a rem......
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Business & commercial cases
...5. Stearns v. Landmark First National Bank of Fort Lauderdale , 498 So.2d 1001 (Fla. 4th DCA 1986). 6. Belford Trucking Co. v. Zagar , 243 So.2d 646, 648 (Fla. 4th DCA 1970). BUSINESS & COMMERCIAL CASES 4-31 Business & Commercial Cases §4:80 §4:80.1.5 Elements of Cause of Action — 5th DCA A......
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Civil litigation
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