Davis v. Tyee Industries, Inc.

CourtCourt of Appeals of Oregon
Citation58 Or.App. 292,648 P.2d 388
Docket NumberNo. A,A
PartiesDarrell DAVIS, Respondent, v. TYEE INDUSTRIES, INC., a Washington corporation, and Brodie Hotel Supply, Inc., a Washington corporation, now known as Brodie-Dohrmann, Inc., a Washington corporation, Appellants. 7904-01927; CA A20704.
Decision Date05 October 1982

Katherine H. O'Neil and Donald Joe Willis, Portland, argued the cause for appellants. With them on the briefs was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Mark McCulloch, Portland, argued the cause for respondent. With him on the brief was Powers & McCulloch, Portland.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

This is an action for money had and received by which plaintiff seeks to recover sales commissions allegedly owed to him. Defendants appeal the judgment after a jury verdict which awarded plaintiff $6,195.81 compensatory damages and $90,000 punitive damages.

Plaintiff is a salesperson employed by Brodie-Dohrmann, Inc. (Brodie), a wholly owned subsidiary of a Washington-based corporation, Tyee Industries (Tyee). In July, 1976, plaintiff, who had been a salaried employe, began working for Brodie on a commission basis. Although he had no written contract with Brodie, it was understood that he would receive commissions on sales made to customers in his assigned territory, if the customer was not assigned to another salesperson. 1 Early in 1978, plaintiff became suspicious that customer numbers were being changed on his invoices. He had noticed that his customer numbers had been lined out and changed to the house cash sales number or to a number representing a salesperson other than himself on some invoices. As a result, his commissions were less than he had anticipated. He made several attempts to get the invoices corrected without success. In the latter part of 1978, a file clerk discovered that customer numbers had been changed on invoices of several other Brodie sales employes.

On December 7, 1978, Mr. Thorenson, president of Tyee, and Mr. Maza, a liason officer employed by Brodie, met with plaintiff and other salespersons to discuss a letter drafted by Brodie employes concerning relations between management and employes. One item on the agenda was the problem of changed customer numbers. At the meeting, employes were invited to contact Mr. Maza, who stated he would make adjustments to an employe's commission if errors were in fact discovered. Several employes asked for and received adjustments. Plaintiff received $72 for invoice errors. 2

On April 23, 1979, plaintiff filed an action against defendants for fraud and for money had and received. The fraud count listed ten specifications of fraudulent conduct allegedly committed by defendants, including the changing of customer numbers on invoices. On motion by defendants, plaintiff, on November 13, 1980, was ordered by the court to

"provide defendants by December 10, 1980, with a list of the sales orders upon which plaintiff claims he was defrauded by defendants and the specifics of each sales order which plaintiff will contend at trial constitutes fraud."

Plaintiff identified approximately 400 sales orders upon which he intended to rely at trial. On December 26, 1980, the court again ordered plaintiff to identify the specifics of fraud for each sales order so identified. Instead of complying with the December 26 order, plaintiff moved to amend his complaint to eliminate the cause of action for fraud. The court granted the motion, but ordered that

"plaintiff's evidence at trial shall be limited to the matters (a)-(c) contained in (plaintiff's counsel's) January 8, 1981 letter to defendants, and that plaintiff may not introduce any evidence which would have been admissible to prove the matters mentioned in subparagraphs A through J (of the fraud count) on pages 2 and 3 of plaintiff's original complaint."

Plaintiff proceeded to trial on the money had and received cause of action, and the jury returned the verdict in his favor.

Defendants assign eight errors and make several arguments under two of the assignments. We need concern ourselves only with some of the arguments.

At the outset, it must be determined whether the facts of this case constitute a cause of action for money had and received. Defendants raise the issue in their second assignment, contending that the trial court erred in failing to direct a verdict for defendants on the issue of general damages.

The action for money had and received is "liberal in form and greatly favored by the courts." Albino v. Albino, 279 Or. 537, 553, 568 P.2d 1344 (1977). The test is whether a defendant, in equity and good conscience, is entitled to keep money to which a plaintiff makes a claim. Rosenblum v. First State Bank of Elgin, 283 Or. 123, 127, 581 P.2d 515 (1978); Smith v. Rubel, 140 Or. 422, 426, 13 P.2d 1078 (1932). It is not necessary that the defendant have received money from the plaintiff to enable the action to be maintained. Pankey v. Oregon Etc., 122 Or. 346, 351, 255 P. 470 (1927); Shell Co. of California v. O'Reilly, 121 Or. 215, 220, 253 P. 1046 (1927). Here, plaintiff makes a claim to money held by defendants that should have been paid to him as sales commissions. The cause of action for money had and received is appropriate.

Defendants next contend that even if plaintiff is entitled to bring an action for money had and received, the evidence does not support a verdict for general damages. During trial, extensive evidence was presented by both sides concerning sales commissions allegedly owed to plaintiff. Each party had an "expert" explain the reams of computer printouts and dozens of invoices admitted in evidence. Examination of the evidence convinces us that a jury could have found plaintiff was entitled to commissions in the amount awarded. The denial of defendants' motion for a directed verdict was proper.

Defendants' first assignment of error raises the major issue in this case: whether plaintiff may recover punitive damages on a cause of action for money had and received. They assign error to the failure to grant their motion for a directed verdict on the issue of punitive damages. They also assign as error the sufficiency of the pleading. Plaintiff's amended complaint alleges in part that

"Defendants' conduct in failing to pay plaintiff the sum of $6,195.81 or any part of it has been willful, wanton, malicious, and in disregard of societal interests and the rights of the plaintiff. For this conduct defendants should be assessed punitive damages in the sum of $100,000.00."

An allegation of willful, wanton and malicious conduct is sufficient to support a claim for punitive damages. See Gergen v. Bartzat, 46 Or.App. 347, 352, 611 P.2d 352 (1980).

Defendants contend that this case should be decided under Washington law, which does not allow punitive damages in an action for money had and received. Defendants did not raise this argument at the trial court level, nor do they cite any authority in their briefs in support of the contention that Washington law should apply. Matters not presented to the trial court will not be considered on appeal, absent special circumstances. Travelers Indemn. v. American Ins., 278 Or. 193, 199, 563 P.2d 684 (1977).

Defendants next contend that, although the action is one at law, it is governed by equitable principles, and punitive damages are not recoverable in equity. Albino v. Albino, supra, 279 Or. at 554, 568 P.2d 1344. However, the Supreme Court has held that when the action for money had and received is brought to recover money obtained by a defendant through tortious conduct, punitive damages will be allowed. Adams v. Crater Well Drilling, Inc., 276 Or. 789, 556 P.2d 679 (1976). In Adams, the defendant intentionally overcharged the plaintiff for drilling a well on the plaintiff's property. When the plaintiff refused to pay the overcharge, the defendant threatened to sue the plaintiff, and the plaintiff paid the defendant. The plaintiff brought an action alleging fraud, but the trial court, finding no reliance on the plaintiff's part, instead awarded the plaintiff compensatory and punitive damages on the theory of money had and received. In upholding the award of punitive damages, the Supreme Court stated:

"Defendant finally contends that because punitive damages are not allowed in a contract action, they are improper in a money had and received action which arises out of a contractual transaction between the parties. However, this contention does not take account of the fact that defendant, in threatening to sue knowing that he had no rightful claim, is a wrongdoer in a tortious sense. That being the case, the same reasons for allowing punitive damages in actions should apply when the action is to recover payment made as a result of essentially tortious conduct." 276 Or. at 794, 556 P.2d 679.

In Adams, the defendant had coerced the plaintiff into making a payment of money to which the defendant knew he was not entitled. There, the defendant had received money from the plaintiff by the tortious conduct of coercion. In the present case, the jury, in awarding punitive damages, must have found defendants' conduct in withholding sales commissions from plaintiff to be in bad faith, that is, that defendants intentionally withheld plaintiff's commissions knowing that they had no right...

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