Farmer's Nat. Grain Corp. v. Kirkendall

• Decision Date: 17 May 1938
• Docket Number: 28057.
• Citation: 79 P.2d 570,183 Okla. 17,1938 OK 337
• Parties: FARMER'S NAT. GRAIN CORPORATION v. KIRKENDALL.
• Court: Oklahoma Supreme Court

79 P.2d 570

183 Okla. 17, 1938 OK 337

FARMER'S NAT. GRAIN CORPORATION v. KIRKENDALL.

No. 28057.

Supreme Court of Oklahoma

May 17, 1938

Syllabus by the Court.

Where a party sues for conversion of his property in order to recover, he must allege and prove that the property was taken or appropriated without his consent. And, if he expressly or impliedly assents to the appropriation, taking, use, or disposition of his property, he cannot recover in an action for conversion.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Action by E. Kirkendall against the Farmer's National Grain Corporation to recover actual and exemplary damages for alleged conversion of certain wheat. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed and remanded for new trial.

Ernest F. Smith, of Enid, for plaintiff in error.

Harry C. Kirkendall, of Enid, for defendant in error.

CORN Justice.

This is an appeal by the plaintiff in error, an Illinois corporation from a judgment rendered in the district court of Garfield county, in an action brought by the defendant in error to recover actual and exemplary damages for alleged conversion of certain wheat. The parties will be referred to as in the trial court.

The Homebuilders Shipping Association, an Oklahoma corporation owned and operated an elevator at Aline, Okl., managed by one Phillips. The Association had a contract with the defendant whereby the Association bought grain from the growers, and paid therefor by drafts drawn on defendant. The defendant then bought this grain from the Association, charging the price paid to the Association against the amount of drafts previously drawn upon it by the Association; then, at regular periods the accounts were balanced and the credits were paid to the Association. The contract provided that drafts should only be drawn on the defendant for grain actually delivered and sold to the Association.

In his petition the plaintiff alleged: While the Association was acting as agent for the defendant, he "sold and delivered" 545 bushels of wheat to the Elevator; at the time of delivery the manager was short in his accounts, which was known to the defendant but not the plaintiff, and defendant knew no draft had been issued in payment and that none would be drawn. Further, knowing it had no right or title in said wheat, the defendant caused same to be loaded and shipped, thereby converting same to its own use, and thus depriving plaintiff of his property.

The plaintiff asked the value of the wheat ($517.90) as damages for the alleged conversion, and $300 exemplary damages. Motions and demurrers were disposed of and defendant answered, admitted a contract as alleged by plaintiff, but denied the agency of the Association Elevator and any conversion of plaintiff's wheat.

The jury returned a verdict for plaintiff for $517.90, value of the wheat, plus $200 exemplary damages. The defendant assigns 20 specifications of error as ground for reversal. However, all of these matters can be decided by determining whether the transaction in question was a sale to the Association, or whether defendant's acts in regard to this wheat amounted to a conversion for which defendant would be liable.

In determining this single question, notice should be taken of the plaintiff's testimony at the trial. After testifying he entered into an agreement with the Elevator manager to sell this wheat at a premium of 4 cents per bushel, the plaintiff testified, in substance, as follows: That he did not ask for his draft when he delivered the wheat, and gave them the right to dispose of it with the understanding that he could get his money any time thereafter that he wanted it. That he delivered it there for sale, did not expect his wheat back, did not...