Colorado Kenworth Corp. v. Whitworth
| Citation | 357 P.2d 626,144 Colo. 541 |
| Decision Date | 05 December 1960 |
| Docket Number | No. 18815,18815 |
| Parties | , 97 A.L.R.2d 990 COLORADO KENWORTH CORPORATION, a Colorado corporation, Plaintiff in Error, v. Henry Clay WHITWORTH, Defendant in Error. |
| Court | Colorado Supreme Court |
Grant, Shafroth, Toll, Chilson & McHendrie, Royce D. Sickler, Denver, for plaintiff in error.
J. V. Condon, George B. Lee, Aurora, for defendant in error.
We recount the chronology of the transaction and the ensuing suit which culminated in the issuance of a writ of error from this court on application of Colorado Kenworth Corporation. Kenworth in the sum us reverse an adverse judgment in the sum of $5,000 obtained by Whitworth.
On December 19, 1956, Whitworth purchased a used truck-tractor from Kenworth at a sales price of $6,500. His initial payment was represented by a credit of $1,428.48 for a truck which he turned over to Kenworth and cash in the sum of $500. He gave Kenworth a note for the balance, secured by a chattel mortgage on the truck-tractor. By the terms of these instruments, the first of seventeen successive monthly payments of $278 was to be made on January 25, 1957, and a final payment of $263.50 on or before June 25, 1958.
The note and chattel mortgage were contemporaneous instruments with a sales agreement executed by the parties. By the latter Kenworth guaranteed the truck- tractor 'for 30 days on 50% parts and 50% labor basis.' By it Whitworth agreed that the 'title to and right of possession of said motor vehicle shall remain in the above seller [Kenworth] until the full purchase price has been paid.'
The chattel mortgage provided that the possession of the vehicle remain in Whitworth 'so long as and only so long as [Kenworth] shall deem itself to be secure in the payment of this mortgage and the indebtedness aforesaid and the conditions of this mortgage are fulfilled.' It also required Whitworth to keep the truck-tractor in 'first-class repair and running condition' at his expense, and should he fail in this respect Kenworth could at its 'option pay said charges, taxes or liens and the sum or sums so paid shall be added to the amount unpaid * * * and shall be immediately due and payable and shall be repaid' by Whitworth to Kenworth.
On the way to Missouri, to start hauling freight for Pacific Intermountain Express, mechanical difficulties developed which required repairs costing Whitworth $101. After his arrival in Missouri he had to replace a brake valve for which he paid $40. Other defects were detected from time to time over a scant period, the rectification of which required small outlays of money.
On January 17, 1957, the vehicle broke down near Columbia, Missouri. The motor was inoperable and the vehicle was towed to a garage where Kenworth authorized repairs for which it would advance the payment and require Whitworth to defray his 50% of the expense under the agreement. The total cost of the repair work was $700.96, and Kenworth was billed for it.
Whitworth operated his vehicle for Pacific Intermountain Express for nearly three weeks, in the course of which he made five trips. Thereafter he hauled freight for Ringsby Truck Line for approximately thirty days, making eight trips for the latter.
A check executed by Whitworth and dated February 11, 1957, in the sum of $178, was sent to Kenworth. A check dated February 18, 1957, in the sum of $700.96, was sent by Kenworth to the garage in Columbia, Missouri, to pay for the repairs to the motor. A check executed by Whitworth and dated February 19, 1956, in the sum of $100, was sent to Kenworth and payment thereon was not realized, because of insufficient funds, until March 21, 1957. These two checks ($178 and $100) completed the January payment.
Whitworth entered into a written agreement with Watson Bros. Transportation Co., Inc., on March 1, 1957, by the terms of which he leased the truck-tractor for a period of one year for haulage of freight. He immediately started to perform the duties required of him under the terms thereof, and acted in pursuance of the contract until May 4, 1957, the date on which Kenworth took possession of the truck-tractor.
On April 22, 1957 Kenworth elected to declare the entire balance on the note due and payable under the terms of the acceleration clause. Its agent was directed to take possession of the truck-tractor. On April 29, 1957 Whitworth sent a check to Kenworth in the sum of $834, representing payments of $278 for the months of February, March and April. This check was cashed on May 2, 1957. On May 4, 1957 the agent of Kenworth demanded the truck-tractor from Whitworth, who advised him of the last payment.
The evidence is in dispute as to what took place after the agent demanded that the vehicle be delivered to him. A telephone call by the agent verified the receipt of the check for $834. Whitworth testified that the agent advised him that the check would be returned; that Kenworth 'wanted payment in full' and 'still wanted the truck.' Kenworth 'wouldn't let [him] have' the truck. The agent told Whitworth he 'couldn't take the truck back to the Watson Brothers to get [his] personal things out of it.'
The agent denied that he advised Whitworth the check would be returned to him, and further testified that Whitworth willingly yielded the truck-tractor to him. He stated that Whitworth at one time expressed dissatisfaction over the decision of Kenworth to take the vehicle, but that later he said he was 'actually sort of glad,' that he would be able to stay with his family. The agent further testified that Whitworth turned the keys of the vehicle over to him.
In regard to the payment by Kenworth of the repair bill of $700.96, Whitworth stated that he did not know it had been paid and had not been informed that his 50% thereof had become due by reason of such payment.
Whitworth brought suit which, as stipulated at a pretrial conference, was founded on the theory of conversion. By his suit he sought to recover damages from Kenworth for the taking, in the sum of $2,612, and for loss of earnings resulting from inability to perform his contract with Watson Bros. in the sum of $14,025, and exemplary damages in the sum of $5,000.
Kenworth answered and counterclaimed. It denied that the repossession was wrongful, relying on the chattel mortgage and an alleged delinquency in the performance thereof by Whitworth. It further alleged a voluntary surrender of the truck-tractor. By counterclaim it sought a judicial sale of the truck-tractor as in foreclosure, and a deficiency judgment if a balance due from Whitworth should eventuate.
Upon trial the factual situation as narrated above was presented. The several contracts for carriage of freight entered into by Whitworth, and his earnings thereunder, were introduced in evidence. At the conclusion of Whitworth's case Kenworth moved for a directed verdict and in the alternative 'for an order limiting damages and striking allegations and prayers for exemplary and punitive damages.' This motion was denied.
Reversal of the judgment is urged because of (1) asserted insufficiency of evidence to establish a conversion, (2) a failure to show the fair market value of the property alleged to have been converted, (3) a lack of evidence to justify the submission to the jury of the question of exemplary damages, (4) singleness of verdict constituting error 'if any one of the categories of damages should not have gone to the jury,' and (5) Kenworth's right to judgment for the unpaid balance of Whitworth's obligation 'whether or not Whitworth's truck was converted by Kenworth.'
Was the evidence insufficient to beget a prima facie case of conversion? Since the details surrounding the taking are variant in certain respects, permitting of hostile findings and inferences by the fact-finder, we are not disposed to disturb the jury verdict, unless as a matter of law they do not constitute a conversion under any aspect. Brunton v. Ditto, 51 Colo. 178, 117 P. 156. Our duty is to entertain inferences properly deducible from the evidence which favor the sustention of the judgment.
Was the taking rightful as a matter of law? Kenworth says it was, and in support of its contention relies on this provision of the chattel mortgage in its relation to the acceleration clause: 'No waiver or failure to enforce any particular provision of this...
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