Mockford v. Iles
| Decision Date | 02 April 1940 |
| Docket Number | 27364. |
| Citation | 26 N.E.2d 42,217 Ind. 137 |
| Parties | MOCKFORD v. ILES. |
| Court | Indiana Supreme Court |
Appeal from Shelby Circuit Court; James A. Emmert Judge.
H K. Cuthbertson, of Indianapolis, for appellant.
Arthur J. Iles, of Indianapolis, for appellee.
This was an action for the unlawful detention and conversion by the appellant of certain personal property of the appellee. The essential facts disclosed by the court's special finding are as follows:--On May 13, 1932, the appellee was the owner of all of the personal property described in the complaint. On said date all of said property was delivered by the appellee to the appellant for storage in the appellant's warehouse. It was agreed between the parties that the appellant should transport the said property to his warehouse and store the same therein, in consideration of the payment to him by the appellee of reasonable storage charges which were to be determined by the amount of floor space occupied by said property in his warehouse.
Prior to the delivery of said property to the appellant for storage it was agreed between the parties hereto that appellant should transfer and move certain other property of the appellee from the apartment where the appellee was then living to another apartment for a consideration of not more than $10. During the moving of the property from the one apartment to the other a lamp shade was damaged which the appellant agreed to replace but which he refused to deliver to the appellee until she paid to him the total sum of $22.50 for transfer and drayage charges for moving the property from the one apartment to the other. The appellee caused her husband, for and on her behalf, to make a formal demand for the return of said lamp shade, which demand was accompanied by a tender to $10 as payment of the transfer and drayage charges in accordance with the agreement between said parties, but said demand was refused by the appellant on the ground that the charges were $22.50.
On June 5, 1933, the appellee made a demand upon the appellant for the return of all her property and tendered to him the amount which he claimed to be due for storage and the sum of $10 as payment of the charges for moving, but the appellant in addition to the $36, which he claimed due for storage, also claimed there was due him the sum of $19.50 for moving the furniture of plaintiff from the one apartment to the other, $1.50 for the use of certain barrels used in such moving, and the further sum of $1.50 for transfer and drayage charges for moving certain other property from 2219 Pierson Street, in the city of Indianapolis, to the appellant's warehouse.
On the refusal of the appellee to pay these additional charges, the appellant refused to accept the tender and refused to return the storage property described in the complaint and the parchment lamp shade which had been damaged in moving.
On January 5, 1935, the appellee made a written demand on the appellant by registered mail for the return of the storage property and the lamp shade and included in said written demand on offer to pay reasonable storage and transfer charges. In response to such demand the appellant mailed a written statement to the appellee's husband again demanding payment of the total sum of $58.50, itemized as stated above and showing a credit for the sum of $16.50 as proceeds of the sale of part of appellee's goods. The court also made a finding that the total value of all the appellee's goods, which were held by the appellant in storage, was the sum of $1,020.26. This amount was computed by the addition of the separate values which the court found for each of the items of said property as of June 5, 1933. The court concluded that the law was with the appellee; that she was entitled to recover from the appellant the sum of $1,020.26 as damages for the conversion by the appellant of the personal property described in her complaint; that the appellant failed to comply with the requirements and provisions of the Uniform Warehouse Receipts Act; that by demanding a sum larger than the amount due him for storage of the property and demanding payment of charges not connected with said storage the appellant 'waived, lost and destroyed any lien he might have had on said property;' that by refusing to return appellee' which appellant held in storage, upon sufficient demand therefor, accompanied by offer to pay all proper charges, the appellant was shown to have been guilty of the conversion of said property to his own use; that the appellee should recover the sum of $1,020.26 from the appellant, and judgment was entered accordingly.
The alleged errors assigned are that the court erred in each of his conclusions of law and in overruling the appellant's motion for a new trial.
Among the grounds stated in the appellant's motion for a new trial were the following: that the finding of the court was (1) not sustained by sufficient evidence, (2) was contrary to law, (3) that the assessment of the amount of the recovery was erroneous, being too large, and (4) that the defendant, by accident and surprise, which ordinary prudence could not have foreseen and guarded against, was prevented from having a fair trial of said cause.
The appellee contends that no question can be presented under the motion for new trial because said motion was not filed within thirty days from the date of the special finding. The record shows that the special finding of facts was filed on December 6, 1937, and the motion for new trial was filed on January 5, 1938. In computing the thirty days we must follow § 2-4704, Burns' 1933, § 1211, Baldwin's 1934, which provides that in such computation the first day is excluded and the last day counted. The motion for new trial was, therefore, filed within thirty days. Condon v. Jones, 1923, 79 Ind.App. 241, 137 N.E. 716.
Appellant's first general proposition is to the effect that as shown by the complaint, the evidence, and the finding of facts, there was only one contract between the parties covering both the goods to be stored and the goods to be transferred and that, therefore, the appellant was justified in refusing to deliver the goods in storage until all charges which were claimed to be due from the appellee, were paid. Finding numbered 2 showed at least a separable contract covering (1) the moving of appellee's goods from one apartment to another and (2) the transportation to the appellant's warehouse and storage of the goods described in the complaint. The appellee's testimony was sufficient to...
To continue reading
Request your trial
-
Yoder Feed Service v. Allied Pullets, Inc.
...constituted coversion. The refusal to accept Allied's tender of $4,700 on June 25, 1971, was unreasonable. In Mockford v. Iles (1940), 217 Ind. 137, 26 N.E.2d 42, where a mover had separate contracts for the transportation and the storage of certain household items, the court, at 144 of 217......
-
Flick v. Simpson, 967A60
...case is sufficient under the requirements of the foregoing statute. Moag v. State (1941), 218 Ind. 135, 31 N.E.2d 629; Mockford v. Iles (1940), 217 Ind. 137, 26 N.E.2d 42; Klein v. Tuhey (1895), 13 Ind.App. 74, 75, 40 N.E. 144; Sexton v. Goodwine (1904), 33 Ind.App. 329, 330, 68 N.E. 929, 7......
-
Boiseau v. Morrissette
...Torts, § 224 (1938); Annotation 116 A. L.R. 870. 3. Weinberg v. Dayton Storage Co., 50 Ca1.App.2d 750, 124 P.2d 155; Mockford v. Iles, 217 Ind. 137, 26 N.E.2d 42; Brown v. Philadelphia, B. & W. R. Co., 36 App.D.C. 221, 32 L.R.A.,N.S., 189; 8 C.J.S., Bailments, § 4. See Restatement, Torts, §......
-
Kerns v. Garrigus, 19385
...were bound by his actions. Flowers v. Board of Com'rs of County of Vanderburgh, 1959, Ind.App., 160 N.E.2d 217, 224; Mockford v. Iles, 1940, 217 Ind. 137, 145, 26 N.E.2d 42; Ferrara v. Genduso, 1938, 214 Ind. 99, 101, 14 N.E.2d 580. The Superior Court had jurisdiction over both the persons ......