Newburger Cotton Co. v. Stevens

• Decision Date: 19 January 1925
• Docket Number: 109
• Citation: 267 S.W. 777,167 Ark. 257
• Parties: NEWBURGER COTTON COMPANY v. STEVENS
• Court: Arkansas Supreme Court

267 S.W. 777

167 Ark. 257

NEWBURGER COTTON COMPANY v. STEVENS

No. 109

Supreme Court of Arkansas

January 19, 1925

Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor affirmed.

STATEMENT OF FACTS

Appellees instituted separate actions in the circuit court against appellant for the wrongful conversion of certain bales of cotton described in their respective complaints. By consent of both parties the suits were consolidated and transferred to the chancery court.

It appears from the record that A. L. Gray was engaged in selling general merchandise at Prairie View, Logan County Arkansas. According to the testimony of A. L. Gray, the cotton in controversy in this suit was placed by appellees in his warehouse to be stored there and kept by him until he was directed to sell it. A. L. Gray was a customer of the Lesser-Goldman Cotton Company at Fort Smith, Arkansas, and was indebted to it in a large sum. He shipped to that company 600 bales of cotton, including the cotton in controversy. He did this because said company requested him to do so, and because it had a better warehouse for storing the cotton. T M. Mason Cotton Company was also a cotton dealer at Fort Smith, Arkansas, and T. M. Mason was the manager of that company. The Lesser-Goldman Cotton Company insisted on Gray selling the cotton in its warehouse for the purpose of paying it the indebtedness owed to it by him. T. M. Mason, for the T. M. Mason Cotton Company, actually made the sale. Gray heard Mason talking over the telephone to the Newburger Cotton Company at Little Rock, Arkansas, about the sale of the cotton. The cotton in question was at this time in the hands of the Lesser-Goldman Cotton Company, and Mason was selling the cotton for that company. We quote from his testimony the following:

"Q. Mr. Gray, you state that all of the cotton embraced in this case, with the exception of a few bales mentioned in your direct examination was sold to Newburger Cotton Company? A. That was my understanding. Q. The deal was made by telephone? A. I think it was. Q. After the deal was closed, state whether you billed the cotton to Newburger Cotton Company and state who assisted you in doing so? A. I assisted one of the clerks of Lesser-Goldman Cotton Company at Fort Smith in making out the invoices to Newburger Cotton Company. Q. Did you list the cotton which you have just testified was sold to Newburger Cotton Company? A. It was in that list of about six hundred bales on consignment to Lesser-Goldman Cotton Company. Q. In that inventory did yon invoice the shipping number of all the bales involved in these suits with the exception of a few bales mentioned in your direct testimony? A. I don't remember making the invoices, but they were made in the code that was consigned to Lesser-Goldman Cotton Company. Q. All these numbers were among the consigned cotton? A. Yes sir. Q. Did you say a draft was attached to the invoices? A. Yes sir. Q. These statements contain a list of the various cotton consigned to Lesser-Goldman Cotton Company, and afterwards sold to the defendant, Newburger Cotton Company? A. Yes, I sold that to Newburger Cotton Company. Q. In your invoice of the cotton which you sold to Newburger Cotton Company, the list embraces all these suits with the exceptions of four or five bales? A. Yes. To my recollection all were in that invoice. Q. A draft was attached to the invoice? A. Yes."

Again, Gray testified that the cotton in controversy in this case was included in the cotton that was invoiced to Newburger Cotton Company. The cotton was sold about the first of August, 1921, at ten cents the pound, and that was the fair market value of it. Some time in September following the market value of cotton was about twenty-one cents the pound. Gray admitted that appellees came to him about the 10th of September, 1921, and demanded their cotton or a settlement for it. When they found that he had sold the cotton, they demanded the price of cotton at that time, which was twenty or twenty-one cents the pound.

All of the appellees were witnesses for themselves. According to their testimony, they placed the cotton in question with A. L. Gray to be kept for them in his warehouse and to be sold when directed by them. They never directed him to sell the cotton, and did not know he had sold it until about the 10th of September, 1921. They went to him at that time for the purpose of directing him to sell it, and, for the first time, found that he had already sold it. They then demanded that he should pay them the market price of cotton at that time. The suit was originally brought against the Lesser-Goldman Cotton Company and the Newburger Cotton Company. A nonsuit was taken as to the Lesser-Goldman Cotton Company and a decree rendered in favor of appellee against the Newburger Cotton Company. The case is here on appeal.

Decree affirmed.

Coleman, Robinson & House, for appellant.

It is essential to a right of recovery in this action to prove a conversion by the defendant, and it is necessary for the plaintiff to prove that the cotton was appropriated by it to the exclusion of the plaintiff. 34 Ark. 421. The only testimony on which a conversion could be found is on the testimony of what Mason told Gray, and that was clearly incompetent, since Mason did not testify. 195 S.W. 683. Appellee cannot rely on the invoice which Gray says he assisted in making out. 91 U.S. 618, 630; 150 U.S. 312, 328; 203 S.W. 917. Damages for conversion of personal property, where the tortfeasor is acting in good faith without illegal motive or wrongful intent, should be the same in case of commodities with fluctuating values as in the case of commodities with stable values, viz.: the value of the commodity at the time of the conversion. If the cotton was bought by Newberger Cotton Company from Lesser-Goldman Cotton Company, it was in good faith and without any knowledge that it did not belong to the latter company. 158 Ark. 619; 25 A. 1043; 79 S.W. 836; 208 S.W. 224; 20 A. 429; 138 P. 910; 134 S.W. 767; 250 S.W. 898; 57 Ark. 92; 20 S.W. 913; 158 Ark. 24.

G. O. Patterson, for appellees.

The question as to whether or not there was a conversion is settled by the finding of the trial court. The court did not, in fact, base its judgment for damages upon the highest market value between the conversion and the day of trial, although we think that would have been proper, under the trend of recent decisions. 26 R. C. L. 1151; L. R. A. 1917B, 787. The rule applied by this court in cases of wrongful cutting and conversion of timber, the trespass being wilful, was not followed by the trial court, but the reason for the application of that rule would apply to the facts in this case, because here there was a wilful, wrongful and intentional conversion. 69 Ark. 302; 130 Ark. 547; 158 Ark. 619.

OPINION

HART, J., (after stating the facts).

It is earnestly insisted that the evidence is not sufficient to warrant the chancery court in finding that there was a conversion of the cotton...