Hansen v. Village of Ralston

• Decision Date: 06 April 1945
• Docket Number: 31879.
• Citation: 18 N.W.2d 213,145 Neb. 838
• Parties: HANSEN v. VILLAGE OF RALSTON.
• Court: Nebraska Supreme Court

18 N.W.2d 213

145 Neb. 838

HANSEN v. VILLAGE OF RALSTON.

No. 31879.

Supreme Court of Nebraska

April 6, 1945

Syllabus by the Court.

1. Where the defendant has come into the possession of property lawfully or without fault, it is generally necessary to make demand of possession of him before suit will lie since there is no conversion until there has been a refusal to surrender such possession.

2. A bona fide reasonable detention of property by one who has assumed some duty respecting it, for the purpose of ascertaining its true ownership, or of determining the right of the demandant to receive it, will not sustain an action for conversion.

3. It is ordinarily for the jury, under proper instructions, to pass upon the existence of the qualified refusal and whether it was reasonable and made in good faith.

4. One who is shown to be acquainted with property and its fair and reasonable value in the market is competent to testify as to such value.

L B. McDonald and Webb, Beber & Kelley, all of Omaha, for appellant.

Gross Crawford & Webb, of Omaha, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

This action commenced in the district court for Douglas county by Raymond Hansen against the Village of Ralston, a municipal corporation, is in trover to recover damages for the conversion of personal property. From a verdict directed in favor of the plaintiff, in which the jury determined his damages to be the sum of $5,166.66, the village appeals.

The plaintiff and appellee will be referred to as Hansen; the defendant and appellant as the village.

The record discloses that in 1937 the village created a project, under the Works Project Administration, to develop a public park. For this purpose it obtained the Cudahy Packing Company's lake and the Lakewood Country Club's grounds, which were developed as Ralston Park. In February of 1937 the village entered into an agreement with George L. Berger to operate it as a public park, golf course and bathing beach. Under this agreement Berger was to purchase, pay for and own all equipment necessary for that purpose.

In order to finance the purchase of the necessary equipment, Berger, on July 15, 1937, entered into an agreement with Henry J. Beal whereby Beal was to and did furnish the money to buy the equipment. Under their agreement the title to the equipment was to be in Beal, subject to Berger's right to purchase for one dollar after the money advanced had been repaid. This is further evidenced by a bill of sale to all this equipment from Berger to Beal, dated August 15, 1938. Berger never repaid the money advanced by Beal.

After Berger had equipped the park it was opened to the public on May 15 1938. Berger continued to operate it until August 4, 1939. The village became dissatisfied with his management and canceled his contract on that date.

In order that the village could keep the park operating and that Beal might get back the money he had invested in the park and the equipment, it was then agreed by Despecher, the mayor of the village, Berger and Beal, that Beal would leave the equipment in the park and a balance due on the P B. Buller account would be paid. This balance was in the form of a conditional sales contract by P. B. Buller with the Ralston Amusement Company. At this time a complete inventory of all the equipment was taken by Berger and Despecher.

It is not entirely clear from the record but apparently the Ralston Amusement Company, a corporation, came into existence at or about this time. It consisted of Despecher, the mayor, as president, Henry J. Beal as secretary, and Melvin Bekins. The village leased the park to this company. The company leased it, in turn, to King George, Coschka, Linder, Schuhart and Skenicka. None of these parties were successful in the operation thereof and as a consequence the village took over. During this time Beal left the equipment in the park and the Ralston Amusement Company paid out its balance on the conditional sales contract with Buller. In August of 1941 the village purchased and had tags placed on the equipment with the following inscription: 'The Property of the Village of Ralston.'

During this period, and up until in January of 1943, Beal had a key to the park and he and Berger were given the right to remove any of the equipment upon giving Shields, the village marshal, a receipt therefor. During 1942 a truck, paint gun, two boats, a table and four chairs and 126 lockers were removed and a boat was sold under this arrangement. On or about January 2 or 3 of 1943 some locker room benches were taken out.

By this time the village board had completely changed it membership from what it had been in 1938. Although it had been permitting Berger and Beal to take equipment out of the park and it had been orally passed down by the members of the board that Beal was the owner of the equipment, nevertheless, after the lockers and benches were taken out the board decided that no more equipment should be removed until it had decided who were the rightful owners thereof. The board caused the locks on the buildings to be changed and, through the town marshal, Berger and Beal were notified of its action. After Shields had notified him, Beal wrote to the village board asking that an inventory be taken of the equipment. Thereupon McDonald, the village's attorney, called on Beal. Beal told McDonald he owned the equipment and wanted an inventory taken before he would take any action. Thereafter he wrote McDonald to that effect. Beal then received a letter from the mayor of the village dated March 8, 1943, which is in part: 'Henry J. Beal, Ralston, Nebraska. The Village Board has assumed that the fixtures and equipment in the club house and bathhouse belong to the village. However, if our assumption is without grounds, we would like to have this clarified. We would be pleased to meet with you in the near future, backing your claim. You can doubtless produce evidence as to the ownership of equipment and for fixtures at the club grounds and if so, we will gladly relinquish our claim. * * *.'

Thereafter Beal transferred all his interest in the equipment to Hansen by a bill of sale dated March 10, 1943. When Hansen appeared to get the equipment he was advised by the village mayor he could not get it unless he appeared before the village board and was able to establish his right thereto. Neither Hansen Berger, Beal nor any one in their behalf ever...