Howard Dodge & Sons, Inc. v. Finn, 3-678A138

• Decision Date: 27 June 1979
• Docket Number: No. 3-678A138,3-678A138
• Citation: 391 N.E.2d 638,181 Ind.App. 209
• Parties: , 26 UCC Rep.Serv. 886 HOWARD DODGE & SONS, INC. and Richard Dodge, Appellants (Defendants Below), v. Marvin E. FINN, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 638

391 N.E.2d 638

181 Ind.App. 209, 26 UCC Rep.Serv. 886

HOWARD DODGE & SONS, INC. and Richard Dodge, Appellants (Defendants Below), v. Marvin E. FINN, Appellee (Plaintiff Below).

No. 3-678A138.

Court of Appeals of Indiana, Third District.

June 27, 1979.

Dennis J. Grotrian and John J. Wernet, Grotrian & Boxberger, Fort Wayne, for appellants (defendants below).

Albert Friend, Angola, David Peebles, Fort Wayne, for appellee (plaintiff below).

STATON, Judge.

Marvin E. Finn recovered a judgment against Howard Dodge & Sons, Inc. in an action for conversion. On appeal, Dodge, Inc. argues that the judgment is contrary to law and not supported by the evidence, and that the trial court erred in refusing to admit into evidence a contract between Finn and his contractor. Finn raises on cross-errors the trial court's refusal to enter judgment against Richard Dodge in his personal capacity.

We affirm in part and reverse in part.

The facts relevant to our disposition are as follows. Marvin E. Finn entered into a contract with Jyles Millikan for the construction of a new home. Millikan arranged with Howard Dodge & Sons, Inc. to furnish the materials and labor for the heating and air-conditioning components of the home. The contract between the contractor and the subcontractor was in the amount of approximately $13,500.00.

Dodge, Inc. delivered various items to the construction site, including two each of furnaces, cooling coils, filters and condensers. These items were at least partially installed. Dodge, Inc. billed Millikan for the materials and labor, but received a total of only $6,600.00.

Meanwhile, Millikan billed Finn and was paid in full, in installments explicitly denominating items paid for, including the specific pieces of heating and air-conditioning equipment furnished by Dodge, Inc.

On June 7, 1973, on account of various defaults, Finn terminated the construction contract with Millikan, effective June 16, 1973. Millikan notified Dodge, Inc. of the termination. On June 14, 1973, Richard Dodge, secretary-treasurer of Dodge, Inc., and some of his employees went to Finn's construction site and removed some of the equipment which Dodge, Inc. had furnished for the home.

Finn demanded a return of the goods and then filed an action for replevin. The court ordered Dodge, Inc. to return the property pending final adjudication of the claims. When Dodge, Inc. was unable to return the goods, Finn added a supplemental complaint for conversion. He alleged that Dodge, Inc. and Richard Dodge were liable for converting $3,750.00 of his personal property, and for damages of $3,000.00, plus interest and costs.

The trial court entered judgment for Finn against Dodge, Inc. in the sum of $5,481.00, plus costs. However, the court held that Finn should take nothing against Richard Dodge.

Dodge, Inc. argues that the trial court's judgment against it is contrary to law and is not supported by the evidence.

The judgment of the trial court must be affirmed on appeal if it is sustainable on any basis. Thus, if any legal theory supports the judgment, it will be affirmed. Ertel v. Radio Corporation of America (1976), Ind.App., 354 N.E.2d 783. Similarly, if the sufficiency of the evidence is questioned, we will view only the evidence most favorable to the judgment, together with all the logical inferences therefrom. Dubreuil v. Pinnick (1978), Ind.App., 383 N.E.2d 420; Utica Mut. Ins. Co. v. Ueding (1977), Ind.App., 370 N.E.2d 373. Thus, if we find sufficient evidence to support the court's judgment on any theory, the judgment will not be disturbed.

Conversion is a tort involving the appropriation of the personal property of another to the tortfeasor's own use and benefit, in exclusion and defiance of the owner's rights and under an inconsistent claim of title. Yoder Feed Service v. Allied Pullets, Inc. (1977), Ind.App., 359 N.E.2d 602; Sikora v. Barney (1965), 138 Ind.App. 686, 207 N.E.2d 846. Mens rea is not an essential element of the offense. Id. Therefore, the fact that a tortfeasor may have acted in good faith in assuming dominion over the owner's property is immaterial.

The essential element Finn was required to prove in this case was his immediate, unqualified right to possession based on a superior claim of title. Yoder, supra, 359 N.E.2d 602. In the pre-trial order, Finn asserted his right to possession based on either of two theories that the heating and air-conditioning equipment were fixtures to his real property; or, that under the Uniform Commercial Code he owned the equipment.

Applying the provisions of the Uniform Commercial Code, we hold that Finn owned the property at the time it was converted by Dodge, Inc.

Under the Uniform Commercial Code, title to goods passes to the buyer at the time the seller completes the physical delivery of the goods, despite any reservation of a security interest. IC 1971, 26-1-2-401, Ind.Ann.Stat. § 19-2-401 (Burns Code Ed.). The contract between Millikan and Dodge, Inc. involved specific pieces of heating and air-conditioning equipment (identified by model numbers, etc.) as well as labor. These "materials" which Dodge, Inc. supplied were clearly goods within the contemplation of the Uniform Commercial Code. The furnaces, etc., were movable, existing and identified to the contract when the seller's interest passed. IC 1971, 26-1-2-105, Ind.Ann.Stat. § 19-2-105 (Burns Code Ed.). ¹ Title to the goods...