Girard v. Anderson

• Decision Date: 20 November 1934
• Docket Number: No. 42369.,42369.
• Citation: 257 N.W. 400,219 Iowa 142
• Parties: GIRARD v. ANDERSON.
• Court: Iowa Supreme Court

219 Iowa 142

257 N.W. 400

GIRARD

v.ANDERSON.

No. 42369.

Supreme Court of Iowa.

Nov. 20, 1934.

Appeal from District Court, Webster County; T. G. Garfield, Judge.

This is an action in damages for the wrongful conversion of property and for the wrongful, malicious, and unlawful breaking and entering plaintiff's dwelling. From a verdict of the jury in favor of defendant, plaintiff appeals.

Reversed.

Breen & Breen, of Fort Dodge, for appellant.

Thomas & Loth, of Fort Dodge, for appellee.

KINTZINGER, Justice.

On the 27th of August, 1929, the plaintiff purchased a secondhand piano from the defendant for $125, paying $50 down, the balance to be paid January 1, 1930. Appellant gave his promissory note for the purchase price, and the $50 payment was indorsed thereon. The contract provided that “in case of any default made in the payments * * * it shall be right and lawful for me * * * to peaceably or forcibly, and without process of law, enter the premises where said property is * * * and to take * * * possession thereof. * * * And all * * * payments made * * * may be considered as rent for the * * * use of said property.”

The evidence shows that the plaintiff-appellant failed to make the payments due on January 1, 1930; it also shows that the defendant accepted further payments on the contract as follows: August 27, 1929, $20; February 25, 1930, $20; March 7, 1931, $10; March 17, 1931, $10; October 29, 1932, $3; a total of $113. Appellee claims that with interest, there is still a balance of $30 due.

The testimony on the part of appellant shows that he and his family left their home to call on relatives at about 11 a. m., Saturday, January 28, 1933, and did not return until about 4:30 that afternoon; that when they left home all the doors were locked. During their absence two employees of the defendant, without appellant's consent, and without notice, broke and entered appellant's home, retook possession of the piano, and returned it to defendant's store. Defendant's employees say that the door through which they entered was not locked, but that they turned the doorknob, opened the door, entered the house, and took the piano. Appellee resold the piano the next Monday morning. Plaintiff's family also testified they kept money in the piano and that it contained $27 when taken. On the following Monday, appellant went to defendant's store to inquire about the piano and the money. The appellee said he had resold the piano, and thereupon both he and appellant went to search the piano, but on examination found no money therein. Defendant and his employees say they examined the piano after it was returned to the store Saturday but found no money.

The principal error complained of is the giving of instruction No. 5. In that instruction the court said: “You are instructed that the contract, Exhibit ‘A’, and all terms and conditions thereof which may be of any materiality in this case are perfectly legal and binding and fully protect the defendant from any liability in this case, except the claimed liability of the defendant for the money which plaintiff alleges was stored in the piano. * * * If the terms of the contract, Exhibit ‘A’ were not waived by the defendant, the defendant is in no manner liable to the plaintiff in this case for the claimed conversion of the piano, because the defendant did no more than the contract as written gave him the legal right to do.” Under this instruction the defendant could, without legal process, forcibly break and enter the buyer's home in his absence, for the purpose of repossessing the piano, without being in any manner liable therefor. The question of plaintiff's right to recover any damages therefor was withdrawn from the jury.

The petition alleges that at the time in question, “while plaintiff and his family were absent from their home * * * the defendant maliciously and unlawfully broke into and entered said home * * * and removed the piano therefrom”; that the piano “contained * * * $27 in cash, which defendant * * * converted to his own use; * * * that by reason of the ‘ taking’ and ‘converting’ * * * of said piano and * * * money * * * plaintiff sustained actual damages, in the sum of $112.” The petition also alleges “ that by reason of the wrongful, malicious and unlawful * * * breaking * * * and entering * * * plaintiff's dwelling, plaintiff is entitled to punitive damages in the sum of $500.” The petition is all in one count and in effect alleges (1) damages for the conversion of the piano, (2) damages for the conversion of the money, and (3) damages for the wrongful breaking and entering the home.

[1][2] Appellee contends there was no breaking and entering; that the door was unlocked, and his agents merely turned the doorknob, opened the door, and entered. Under our decisions, this would constitute a breaking and entering; but if that should not be considered a breaking and entering, appellant's evidence shows that the doors were all locked when plaintiff left home, and it was therefore a question for the jury.

[3] It is suggested that plaintiff is not suing for “trespass” but for “conversion.” The allegations of the petition, however, are broad enough to include damages for both “trespass” and “conversion.” Under our Code system of pleading, it is only necessary to state the facts, and if they are broad enough to include a claim of damages for both “trespass” and “conversion,” then instruction No. 5 would be clearly erroneous. It is immaterial what the cause of action may be called, but if a good cause is stated, and supported by evidence, it would be highly prejudicial to tell the jury that the conditional sales contract “fully protects defendant from any liability in this case.”

The question of damages for conversion of the money was properly submitted to and determined by the jury, and we are not concerned with that question.

[4][5][6] The vital question is whether or not the seller had a right under the contract, without the buyer's consent, and without notice, to break and enter the buyer's home and forcibly retake the piano. Appellee contends that he had such right, providing he used no more force than was necessary to recover the piano.

It is the rule in a number of jurisdictions that, under a similar contract, the seller has a right to forcibly enter the buyer's home and retake possession of the property, without being liable in damages for either trespass or conversion, providing he used no more force than necessary to recover possession of the property sold. 24 R. C. L. 486, § 779; W. T. Walker Furniture Co. v. Dyson, 32 App. D. C. 90, 19 L. R. A. (N. S.) 606;Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 Am. St. Rep. 326;Wilmerding v. Rhodes-Haverty Co., 122 Ga. 312, 50 S. E. 100;North v. Williams, 120 Pa. 109, 13 A. 723, 6 Am. St. Rep. 695;Singer Sewing Machine Co. v. Hayes, 22 Ala. App. 250, 114 So. 420;Allen v. Crofoot (N. Y.) 5 Wend. 507;Erskine v. Savage, 96 Me. 57, 51 A. 242;Sterling v. Warden, 51 N. H. 217, loc. cit. 240.

The courts are not in harmony as to the right of a seller under a conditional sale to forcibly break and enter purchaser's home in his absence, and retake the property sold, although the right to enter and take the goods is reserved in the contract. Appellant contends,however, that the true rule is that where any resistance is offered, the seller is required to resort to the courts to repossess the property sold; and “that the seller may render himself liable in tort if he exercises his right to retake possession in an unreasonable manner.” 24 R. C. L. 486, § 779; vol. 2, Uniform Laws-Conditional Sales Act, p. 27, § 16; 55 C. J. 1288 (§ 1313); Biggs v. Seufferlein, 164 Iowa, 241, 145 N. W. 507, L. R. A. 1915F, 673;Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670;Bliss v. Johnson, 73 N. Y. 529;Van Wren v. Flynn, 34 La. Ann. 1158;Stewart v. F. A. North Co., 65 Pa. Super. 195;Pagan v. Drake Furniture Co., 73 S. C. 364, 53 S. E. 542;Culver v. State, 42 Tex. Cr. R. 645, 62 S. W. 922;Crews & Green v. Parker, 192 Ala. 383, 68 So. 287;Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89;Singer Sewing Machine Co. v. Phipps, 49 Ind. App. 116, 94 N. E. 793;Dominick v. Rea, 226 Mich. 594, 198 N. W. 184, 36 A. L. R. 850;Reinkey v. Findley Co., 147 Minn. 161, 180 N. W. 236;McCarty-Greene Motor Co. v. House, 216 Ala. 666, 114 So. 60;Abel v. M. H. Pickering Co., 58 Pa. Super. 439.

In a comprehensive discussion of this question, in Biggs v. Seufferlein, 164 Iowa, 241, loc. cit. 251, 145 N. W. 507, 510, L. R. A. 1915F, 673, we said: “It is well settled that the mere right to the possession of property does not entitle the party to take the same from the one in the actual rightful possession by force or violence. But to recover possession, under such circumstances, resort must be had to legal proceedings. * * * Yale v. Seely, 15 Vt. 221. * * * The law will not permit or tolerate that persons take the settlement of conflicting claims into their own hands. * * * The general rule is that a right of property merely, joined with right of possession, will not justify the owner in...