Biermann v. Gus Shaffar Ford, Inc., No. 16768

• Decision Date: 11 March 1991
• Docket Number: No. 16768
• Parties: William C. BIERMANN and Patricia L. Biermann, Respondents, v. GUS SHAFFAR FORD, INC., Appellant.
• Court: Missouri Court of Appeals

Page 314

805 S.W.2d 314

William C. BIERMANN and Patricia L. Biermann, Respondents, v. GUS SHAFFAR FORD, INC., Appellant.

No. 16768.

Missouri Court of Appeals,

Southern District,

Division One.

March 11, 1991.

Lynn C. Rodgers, Hall, Ansley, Carmichael & Gardner, Springfield, for appellant.

John Cowherd, Stemmons & Stemmons, Mt. Vernon, for respondents.

CROW, Judge.

Plaintiffs William C. Biermann and Patricia L. Biermann sued defendant Gus Shaffar Ford, Inc., asserting two claims: (1) breach of a contract to sell plaintiffs an automobile, and (2) conversion of $1,000 deposited by plaintiffs toward the purchase price. Trial by jury produced (1) a verdict awarding plaintiffs $3,495 on the contract claim, and (2) a verdict awarding plaintiffs $40 actual damages ¹ and $16,000 punitive damages on the conversion claim. The trial court entered judgment per the verdicts.

Defendant appeals, raising issues of evidentiary sufficiency, jury instructions, and admission and rejection of evidence.

In considering the assignments of error we follow the general rule that inasmuch as the verdicts and judgment were in favor of plaintiffs, we examine the evidence in the light most favorable to them, giving them the benefit of all reasonable inferences. Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. banc 1977). We synopsize the evidence in that light. ²

Plaintiffs are residents of Illinois. Plaintiff William C. Biermann ("Bill") is a truck driver.

On September 24, 1986, Bill was in Joplin, Missouri, making a delivery. He noticed a 1983 Cadillac priced at $13,900 on defendant's used car lot. Bill conversed with Randall G. Cooper, one of defendant's salesmen, about buying it and negotiated a reduction of the price to $10,900.

Bill departed and phoned Patricia, who was visiting her parents in Florida. Bill and Patricia decided that if defendant would sell the Cadillac for $10,500 they would buy it.

Bill returned to defendant's place of business the next day and offered Cooper $10,500. Cooper accepted. It was agreed plaintiffs would make a $1,000 downpayment and finance the remaining $9,500 through Ford Motor Credit Company. Bill phoned Patricia from defendant's office about assembling the necessary "credit information." Bill charged $200 of the downpayment on his VISA card. Patricia was to send a check for the remaining $800 "after the credit was checked out."

Later that day (September 25) Patricia phoned defendant's office from Florida, speaking first with Cooper and later with Lewis Charles Walters, defendant's used car manager. Patricia supplied the data required by defendant.

She returned to her home in Illinois September 30. The next day Bill, who had also arrived home, talked with Cooper by phone, informing him plaintiffs were sending the $800 check. Later that day Bill phoned Cooper to obtain the Cadillac's serial number. Cooper assured Bill "the financing had gone through." Bill told Cooper he would pick up the Cadillac "the weekend of the 11th."

Patricia prepared an $800 check payable to the order of defendant, writing the Cadillac's serial number on it. Plaintiffs mailed the check that day (October 1), requesting confirmation of delivery. Plaintiffs later received a receipt showing delivery to defendant October 3, 1986.

Defendant deposited the check October 6, 1986, in a bank account designated "Gus Shaffar Ford Inc., General Working Fund." That same day Walters phoned plaintiffs' residence to confirm they were coming for the Cadillac October 11. Patricia told Walters plaintiffs would arrive that morning. Patricia quoted Walters as saying, "Well, if you're running late, let me know, because I'll make sure somebody stays here for you."

On the afternoon of October 7, Patricia received a call from Cooper. Patricia testified: "He said that they had sent the car out to be washed, and that he was out to lunch, and they had brought it back and put it in the front line, and another salesman had sold it.... He said ... we could, uh, put a stop on the check, our check. And I told him I would tell my husband, give my husband the message."

Bill, who was "on the road" when Cooper called, phoned Patricia later that day. Patricia told Bill what Cooper had said.

Bill phoned Cooper. Cooper told Bill the Cadillac had been sold. Bill consulted a lawyer in Illinois later that day.

Plaintiffs, accompanied by their daughter and her fiancee, arrived at defendant's place of business Saturday, October 11, 1986, shortly after 8:00 a.m. They went inside. Bill saw Walters and said he had come to pick up the Cadillac. Walters replied, "Oh, we sold that car."

Plaintiffs asked Walters "what he was going to do about it." Walters answered, "Nothing."

A salesman showed Bill a Lincoln Continental parked outside. Bill "had no interest in it." Bill's testimony continued:

"Q. Specifically what did you ask the salesman?

A. I asked him, 'What about my thousand dollars?'

Q. What did he say?

A. Nothing. He just walked off like I never had said a word.

Q. Did you have any other contact with any other employees of Gus Shaffar Ford that day?

A. No, I didn't.

Q. What happened at that point?

A. Well, we were kind of--when we went inside there were many, I don't know if they were salesmen or what they were, that kind of like surrounded us and, uh, made me feel a little intimidated, because I've got my wife and daughter and her friend along, and I certainly did not want to see anything happen...."

When the salesman walked away, plaintiffs departed with their daughter and her fiancee.

Plaintiffs filed suit March 3, 1987.

On April 30, 1987, defendant issued a $1,000 check payable to plaintiffs and their lawyer.

Plaintiffs established through testimony by Walters that the Cadillac was sold to "Mr. and Mrs. Woods" for $13,995. That transaction evidently occurred October 6, 1986.

The first of defendant's eight points relied on asserts plaintiffs failed to make a submissible case on the conversion claim. Defendant argues plaintiffs presented no evidence that the $1,000 was specifically identifiable as a specific chattel and that the return of a specific chattel was contemplated by the parties or demanded by plaintiffs. Furthermore, says defendant, plaintiffs presented no evidence the $1,000 was delivered to defendant for a specific purpose and diverted by defendant to some different purpose.

Defendant relies on the principle that conversion does not ordinarily lie for money represented by a general debt. Dillard v. Payne, 615 S.W.2d 53, 55 (Mo.1981); Breece v. Jett, 556 S.W.2d 696, 710 (Mo.App.1977). As a general rule an action for conversion lies only for a specific chattel which has been wrongfully converted, hence a claim for money may not be asserted in conversion. Gaffney v. Community Federal Savings and Loan Ass'n., 706 S.W.2d 530, 533 (Mo.App.1986); Western Casualty & Surety Co. v. First State Bank of Bonne Terre, 390 S.W.2d 913, 921-22 (Mo.App.1965).

However, the rule is otherwise as to funds placed in the custody of another for a specific purpose. Their diversion for other than such specified purpose subjects the holder to liability in conversion. Dillard, 615 S.W.2d at 55; Coleman v. Pioneer Studebaker, Inc., 403 S.W.2d 948, 951 (Mo.App.1966).

In Dillard a client brought a conversion action against two lawyers, alleging (1) he employed them to represent him in a lawsuit on a contingent fee basis, (2) he deposited $300 with them to be held in a "trust account" for paying expenses in the suit, (3) $10 of the deposit was spent, (4) the lawyers withdrew from representing him without filing the suit, and (5) the lawyers converted the remaining $290 to their own use. The client prayed for $290 actual damages, together with punitive damages. The lawyers paid $290 into the trial court, and judgment was entered for the client in that amount. On motion of the lawyers, the claim for punitive damages was stricken.

On appeal the Supreme Court of Missouri held the petition adequately alleged a fund belonging to the client which was placed in custody of the lawyers for a particular purpose and the diversion by the lawyers of such fund to their own use. 615 S.W.2d at 55. Citing Coleman, 403 S.W.2d 948, and other authorities, the Supreme Court held the petition stated a claim for conversion. 615 S.W.2d at 55. The order striking the claim for punitive damages was reversed and the cause was remanded. Id.

Coleman, relied on in Dillard, is remarkably similar to the instant case. In Coleman a customer deposited $55 with an automobile dealer toward the purchase of an automobile. The customer was thereafter told the car had been sold. He demanded his money back. A salesman tried to sell the customer a different car. The customer insisted his deposit be returned. He was told "the guy that unlocked the safe was not there." Subsequent demands for return of the deposit were spurned by the dealer. The customer sued in conversion, obtaining judgment for $55 compensatory damages and $2,500 punitive damages. On appeal the court held it was beyond question that the customer's money was converted by the dealer "without even a scintilla of justification." 403 S.W.2d at 951. In upholding the award of punitive damages the court stated it was apparent the dealer "acted knowingly and with intent to convert [the customer's] money wrongfully, without any possible justification or valid claim thereto." Id. at 952.

Defendant offers no persuasive reason why Coleman does not control here. Defendant's only effort to distinguish Coleman is that the dealer there affirmatively refused to refund the deposit despite repeated demands by the customer. Defendant maintains that here, plaintiffs never demanded return of the deposit.

We disagree. Plaintiffs' evidence was that when Walters told them October 11, 1986, that the Cadillac had been sold, plaintiffs asked what he was going to do about it. Walters replied, "Nothing." Bill testified that when he asked...