Miller v. Long
| Decision Date | 17 January 1956 |
| Docket Number | No. 18645,18645 |
| Citation | 126 Ind.App. 482,131 N.E.2d 348 |
| Parties | Anna Mae MILLER, Eugene E. Flesch, and Owen Gahagan, doing business as Flesch-Miller Tractor Company, Louis Somers, Appellants, v. Oliver N. LONG, Appellee. |
| Court | Indiana Appellate Court |
Kunz & Kunz, Halbert W. Kunz, Indianapolis, for appellant.
John E. Hammonds, Speedway City and Indianapolis, Ben F. Hatfield, Jr., Indianapolis, for appellee.
Action by appellee for the alleged conversion of his tractor by appellants, who, excluding Louis Somers, are partners in the tractor business. Upon trial by the court, without jury, of the issues made by appellee's third amended complaint and appellants' answer in two paragraphs, the court found for appellee and entered judgment that appellee recover of appellants, jointly and severally, damages in the amount of $1,500, plus $930 special damages, and costs.
Appellants' motion for a new trial specifies that the amount of recovery is too large, that the decision of the court is not sustained by sufficient evidence and is contrary to law, that the court erred in overruling appellants' motion made at the conclusion of appellee's evidence, to find for them, excepting therefrom appellant Louis Somers, and that the court erred in 'sustaining the objection' of appellee to a certain stated exhibit offered in evidence by appellants.
Appellants fail to discuss or argue the specifications of their new trial motion that the court erred in overruling their motion to find for them made at the conclusion of appellee's evidence, and that the court erred in 'sustaining the objection' of appellee to the admission in evidence of a certain exhibit offered in evidence by appellants. We, therefore, treat said specifications as waived and will notice them no more.
The evidence favorable to appellee tends to establish that appellee purchased a used Model M. Allis-Chalmers Dozer for $1,500; that the tractor was delivered to appellee about September 27th or 28th, 1951 and up to October 22, 1951 appellee had used it a total of three or four hours in light work, during which time appellee observed that it pumped oil and fouled out the plugs: that about October 17, 1951 appellee inquired of appellants, with whom he was not then acquainted, at their plant in Lawrence concerning a repair job or a 'motor kit', as it is referred to; that no information as to the inquiry was then given but appellee was asked if he would be interested in making a trade to which he replied that he might be interested if he could purchase a like machine without too much money, and thereupon appellant, Louis Somers, a salesman for the appellant partners, took appellee to see a D grader in operation and another tractor.
Thereafter appellant Somers gave appellee an appraisal figure of $850 for his tractor which appellee rejected as being far too low, and Somers said he thought he could find a buyer for $1,250 to which appellee replied that he was not interested in selling the tractor at any price. The same or a day later appellants gave appellee a price for the repair of his tractor and appellee on October 20, 1951 made arrangements to have the tractor, then in enclosed ground, picked up and delivered to appellants' plant for repair. But, around the 20th, 21st, 22nd, or 24th of October, 1951, before the tractor could be picked up for delivery to appellants' plant for repair, appellant, Louis Somers, told appellee he had sold the tractor and that a credit of $1,500 to his account had been placed on the books of appellants. Appellee then told said Somers that he had no right to sell the tractor and if it had been taken away 'for him to put it back where it was.'
Appellee had intended to use his tractor in his business of constructing small homes and had planned to use it in the final construction work of a dam in Brown County which he was in the process of building on his property there during the times aforesaid. The dam, at the time of the alleged conversion of the tractor, had been partially constructed as a 'rough grade water dam'. It had yet to be fine graded at the top and a partially completed spillway finished, without which, the evidence reflects, the dam would wash out. Appellee had paid out the sum of $1,250 for the rough grade construction of the dam. When appellee learned that his tractor had been sold and moved away he endeavored several times to have the dam completed by Mr. Neal, a contractor who had been working on said dam there in Brown County, but said Neal had previously moved his equipment back to Indianapolis and was not available for the work because of previous commitments. In the last week of November, 1951, the dam washed out and the cost of reconstructing it was approximately from $1,400 to $1,700 which appellee had paid.
There is evidence to the effect that prior to the washout the spillway had been grooved out and that 'trickle pipes' had been put in which, according to information given appellee by the Conservation Department, would carry over a million gallons each and provided all the outlet needed to take care of the overflow of the dam. Notwithstanding, it appears that the dam did wash out and appellee testified that if his tractor had been available when Mr. Neal finished the rough grade he could have constructed the spillway with the tractor and had he completed the spillway the dam would not have washed out. Three or four days after the washout, appellee, with Mr. Neal using an Insley back-hoe, began the reconstruction of the dam including the spillway. It was fully completed at the cost aforesaid with the dam being built higher than before and with the spillway at the same previous level. There is sharp conflict in the evidence as to the availability to appellee, during the twenty-five or more day period between the time Mr. Neal had left the job and moved his material and the washout, of equipment with which he could have finished the construction of the spillway.
This appeal poses these questions: (1) Is the finding of the court that appellants converted appellee's tractor sustained by sufficient evidence or contrary to law? (2) Was appellee entitled to recover special damages? (3) If special damages were allowable, did appellee use reasonable diligence to mitigate his damages?
(1). It is apparent that this is not an action for equitable conversion but is an action for damages allegedly resulting to appellee by reason of the alleged tortious appropriation by appellants of personal property belonging to and possessed by appellee. The appropriation of said property must consist of the exercise by appellants of dominion over said personal property to the exclusion of and in definance of appellee's rights therein.
Appellants urge that the two basic 'concepts' necessary to establish conversion are 'the converter coming into possession either constructively or actually' and that by such possession 'the true owner is denied his right to and absolute dominion over his property.' They then say that both these basic concepts 'are lacking from the case at bar.' The evidence, they assert, presents the picture of a 'middle man or agent seeking to bring the owner and purchaser together,' and that appellant Somers 'asserted no title or dominion to the property at any time, and in fact never came into possession.' They cite Beaver Products Co. v. Voorhees, 1923, 81 Ind.App. 181, 142 N.E. 717, as supporting this proposition.
In the cited case, however, the dealer had authorized the buyer of the unsatisfactory shingles to sell them, which he did prior to his receipt of the dealer's order for reshipment to the dealer. The court held that the sale authorization constituted the buyer the agent of the dealer and that the buyer was acting in that capacity when he sold the shingles. Such is not the case reflected by the evidence in this action.
Appellants have referred to evidence and facts in the case which, if standing alone or undisputed, would lend great weight to their contention that Somers was made the agent of appellee to sell his tractor. But the evidence and circumstances alluded to by appellants do not stand alone nor can they be considered undisputed. The court apparently concluded that Somers was not appellee's agent for sale of the tractor and there is evidence to sustain that conclusion. For instance, it is true, as appellants say, that a trade-in figure for appellee's tractor was discussed and that appellee said he would consider nothing less than $1,500, from which it might have been inferred that appellee authorized a trade-in or sale of his tractor at a figure of $1,500. However, there is testimony by appellee that he told Mr. Somers that he 'was not interested in selling the tractor at any price,' and there were other facts established by the evidence from which the court could, and apparently did, conclude that appellee made no agreement or arrangement for the sale of his tractor by Somers or anyone else.
Appellants earnestly insist that a sale of another's property does not in and of itself constitute a conversion, that under the evidence in this cause appellants never came into the possession of the tractor nor did they assert any claim or title inconsistent with appellee's rights, and that Somers at all times recognized appellee's ownership and title to the property. In this connection they rely upon Steel Const. Co. v. Rossville Alcohol & Chemical Co., 1938, 105 Ind.App. 520, 12 N.E.2d 987, 16 N.E.2d 698. That case contains no such holding as appellants propose. As stated in the annotation of 129 A.L.R. 638, 639 and 640, the court held that the established facts were insufficient to establish a conversion, in the absence of a denial of plaintiff's claim to or ownership of the property, or any other act of dominion over it. (Our emphasis.)
In the case before us the evidence discloses that appellants sold appellee's property, which was not on...
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