Burroughs v. Butler-Ryan Co.

• Decision Date: 12 October 1903
• Citation: 96 N.W. 750,121 Iowa 215
• Parties: N. T. BURROUGHS v. BUTLER-RYAN COMPANY, Appellant
• Court: Iowa Supreme Court

96 N.W. 750

121 Iowa 215

N. T. BURROUGHS v. BUTLER-RYAN COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 12, 1903

Appeal from Cherokee District Court.--HON. WILLIAM HUTCHINSON Judge.

ACTION at law to recover the value of brick sold to the defendant by one J. M. Starbuck. Starbuck manufactured the brick in question, and, in advance thereof, borrowed money of the plaintiff, and executed to him a mortgage thereon as security for his loans. The mortgage gave the plaintiff the right to sell the brick so manufactured, and provided that no sale should be made by Starbuck without the consent of the plaintiff; and, further, that the plaintiff should have the right to collect all accounts due for sales made by either party. Starbuck contracted with the defendant to furnish it a large quantity of brick at an agreed price. He furnished a part thereof, but failed to fully perform his contract. The plaintiff sued for the value of the brick so furnished to the defendant, alleging his lien thereon, and a conversion by the defendant. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

William Mulvaney and How & Butler for appellant.

F. C Herrick for appellee.

OPINION

SHERWIN, J.

The plaintiff's claim is based upon an alleged conversion of property upon which he held a lien by virtue of a chattel mortgage, and such was the theory of the trial in the district court. It is elementary that there is no conversion of property where it has been acquired and used with the consent of the owner or pledgee. The brick in controversy were undoubtedly covered by the plaintiff's mortgage, but the mortgage itself, by implication at least, provided that they might be sold by Starbuck with the consent of the plaintiff; and, if he did in fact give his consent to their sale to the defendant, there was no conversion, and an action therefor could not be maintained upon the theory presented by the pleadings and upon which the case was tried. The question of plaintiff's consent to the sale was a material one and the court should have instructed the jury thereon instead of instructing as a matter of law that there was a conversion. It is true that forms of action have been abolished by statutory enactment, but this does not aid the plaintiff in his contention that he was entitled to recover at any rate, or under a different theory. The defendant was entitled to...