Harris Truck and Trailer Sales v. Foote

• Decision Date: 25 June 1968
• Citation: 58 Tenn.App. 710,436 S.W.2d 460,5 UCCRep.Serv. 569
• Parties: , 5 UCC Rep.Serv. 569 HARRIS TRUCK & TRAILER SALES and Buster Bennett, Plaintiffs in Error, v. Ray FOOTE, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 460

436 S.W.2d 460

58 Tenn.App. 710, 5 UCC Rep.Serv. 569

HARRIS TRUCK & TRAILER SALES and Buster Bennett, Plaintiffs in Error, v. Ray FOOTE, Defendant in Error.

Court of Appeals of Tennessee, Western Section.

June 25, 1968.

Certiorari Denied Nov. 5, 1968.

Don Owens, Memphis, John P. Bradshaw, Cape Girardeau, Mo., for plaintiffs in error.

Dale Woodall, Memphis, for defendant in error.

BEJACH, Judge.

In this cause, Harris Truck & Trailer Sales and Buster Bennett appeal in error from a jury verdict and judgment against them in the Circuit Court of Shelby County, Tennessee for $8,000 recovered on the theory that plaintiffs in error had wrongfully converted a Diamond--T tractor belonging to defendant in error, Ray Foote. The parties will be hereinafter referred to, as in the lower court, as plaintiff and defendants, or called by their respective names.

The tractor in question had been purchased on January 25, 1965 as a 'used' tractor by one D. L. Lindsey from Harris Truck & Trailer Sales for the sum of $8,020.80, for which purchase he made a down payment of $1,500 and contracted to pay the balance of $6,520.80 in twenty-four monthly installments of $271.67 each, beginning February 25, 1965, and monthly thereafter. Said D. L. Lindsey then executed a Tennessee security agreement, in which the Harris Truck & Trailer Sales retained title to the tractor. Among other provisions, the security agreement contains the following covenant:

'Time is of the essence of this security agreement, and if I fail to pay any of the installments when due or otherwise breach or fail to perform any of the provisions or promises herein, or if attachment, levy of execution or other process issues against the motor vehicle, or in the event of bankruptcy or insolvency or if the holder shall deem himself insecure, all unpaid installments shall immediately become due and payable without notice or demand and the holder hereof may, without notice or demand, and with or without process of law enter any premises where said motor vehicle may be and take possession of it and sell it at public or private sale with or without notice and all sums paid hereunder may be retained for use of the vehicle.'

D. L. Lindsey made the monthly payments for February, March, April and May of 1965 and obtained two extensions for June and July of that year. On October 5, 1965, notwithstanding the extensions previously granted, Lindsey was in arrears for two months, namely, August and September of 1965. Shortly before that date, Lindsey and Foote entered into an agreement under the terms of which plaintiff was to purchase Lindsey's equity in the tractor for the sum of $500.00. On October 5, 1965, Lindsey and plaintiff went to the place of business of defendants where they and defendant Buster Bennett, as representative of the defendant Harris Truck & Trailer Sales, agreed that for the payment by plaintiff of $500.00 to Lindsey, payment of the two installments which were in arrears, payment within six months of a repair bill of approximately $600.00, payment for insurance on the tractor, and payment of the future monthly installments when due, plaintiff might be substituted for D. L. Lindsey as purchaser of the tractor, all conditioned, however, on plaintiff's credit being approved by Associates Discount, Inc., to which company Harris Truck & Trailer Sales had assigned the security agreement. Plaintiff admitted in his testimony that the deal was conditioned on approval of his credit by Associates Discount, Inc., and the record shows that his credit was never approved by that company. It therefore follows, necessarily, that D. L. Lindsey was never released from his obligations on the security agreement.

Plaintiff paid to D. L. Lindsey $300.00 of the $500.00, which payment was made to Harris Truck & Trailer Sales for his benefit. Plaintiff paid to Harris Truck & Trailer Sales on October 5, 1965 the sum of $200.00, and on October 11, 1965 the total sum of $653.34, for which he received receipts signed by E. B. Bennett, reading: 'A receipt for $353.34 Three Hundred and Fifty-Three Dollars and 34/100 to Mr. Ray Foote on Don Lindsey's truck' and another 'receipt for $300.00 Three Hundred and no/100 for Mr. Don Lindsey'. Plaintiff also paid $271.69 for one truck payment and $100.00 on the garage repair account, but he made no payments thereafter. Plaintiff was told by Buster Bennett, after making his payment October 11, 1965, that the payments were 'caught up', and he was permitted to take possession of the tractor.

After Christmas of 1965, plaintiff conferred with defendant, Buster Bennett, and promised to pay up after he returned from a hauling trip to Chicago. He claims that Bennett agreed at that time to wait until his return from Chicago for further payments on the tractor.

Plaintiff returned from Chicago on or about January 1, 1966, and took the tractor with a trailer loaded with merchandise attached to it to the Central & Southern Truck Lines lot where he parked the tractor and trailer and went home. When plaintiff returned to the Central & Southern Truck Lines lot the next day, he found the trailer disconnected and the tractor gone. He reported the tractor as stolen, but later found that defendant Buster Bennett, accompanied by D. L. Lindsey, had been to the Central & Southern Truck lot, where Lindsey had disconnected the tractor from the trailer, taken possession of the tractor, and driven it to the place of business of the Harris Truck & Trailer Sales where he left it. There is considerable dispute in the record as to whether Lindsey was acting as agent for Harris Truck & Trailer Sales, or acting for himself in taking possession of the tractor and driving it back to the place of business of Harris Truck & Trailer Sales. At any rate, on the theory that Lindsey was acting as agent for Harris Truck & Trailer Sales, plaintiff brought suit February 7, 1966 in the Circuit Court against Harris Truck & Trailer Sales and Buster Bennett.

His declaration is in four counts, which present different and somewhat diverging theories of liability. Defendants filed a plea of not guilty, and later, on order of court, filed special pleas. The cause was tried to a jury before Hon. Greenfield Polk, Judge of Division V of the Shelby County Circuit Court. The defendants offered no proof, but moved for a directed verdict at the conclusion of plaintiff's proof, and rested when that motion was overruled. The cause was submitted to the jury on the issue of whether Lindsey, in taking possession of the tractor had acted as agent for Harris Truck & Trailer Sales, and on the issue of whether or not such taking constituted a wrongful conversion by defendants. The jury returned a verdict in favor of plaintiff against both defendants for $8,000. Defendants filed a motion for new trial, which was overruled, after which they appealed in error to the Court of Appeals, where defendants, as appellants, have filed six assignments of error. We deem it unnecessary to copy these assignments of error into this opinion, or to discuss them separately, except incidentally...