Rogers v. Rogers

• Decision Date: 01 April 1935
• Docket Number: 13577.
• Citation: Rogers v. Rogers, 96 Colo. 473, 44 P.2d 909 (Colo. 1935)
• Parties: ROGERS v. ROGERS.
• Court: Colorado Supreme Court

44 P.2d 909

96 Colo. 473

ROGERS v. ROGERS.

No. 13577.

Supreme Court of Colorado

April 1, 1935

Rehearing Denied April 29, 1935.

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by Mamie S. Rogers against Harry R. Rogers. Judgment was entered dismissing the action, and plaintiff brings error.

Reversed and cause remanded, with instructions.

W. David McClain and James E. Garrigues, both of Denver, for plaintiff in error.

James A. Marsh and Benjamin E. Sweet, both of Denver, for defendant in error.

YOUNG Justice.

The parties appear in this court in the same order as in the court below and will be designated herein as plaintiff and defendant.

Plaintiff alleges in her complaint that on September 16, 1923, she made a loan to defendant of $4,319.15, evidenced by a promissory note, and that on September 17, 1926, this note was renewed as to the unpaid balance; the new note being for $4,069.89. Defendant had given his note for $15,000 to one Sally Ver Bryck and secured the same by a mortgage on certain land in Kansas. Defendant procured the indorsement of this note by Sally Ver Bryck and placed the same with plaintiff as collateral security for his note to her, and for a subsequent renewal note. Three days after the renewal of the note defendant called on plaintiff and told her he wanted to borrow money from a bank at Wheatland, Wyo., and asked her to lend him the $15,000 note that she held as collateral security in order that he might use it as collateral for the contemplated loan from the Wyoming bank, stating that he would later return said collaterial to her. The defendant took the $15,000 note. He did not secure any loan from the Wyoming bank, but retained the collateral in his possession. At divers times plaintiff inquired of defendant about the return of the collateral to her and why it had not been returned and defendant always stated that it was still held by the Wyoming bank as collateral security. Plaintiff alleges that she believed him and relied upon these statements. July 26, 1927, defendant caused the mortgage on the Kansas lands to be released and a month later deeded the property covered by the mortgage to an innocent third party. Plaintiff alleges that she first discovered what she denominates as 'said fraud, including the release of said mortgage, sometime in February, 1932.' The foregoing are the material allegations of the complaint. Plaintiff asked judgment for damages in the sum of $6,298.49, and for an execution against the body of defendant.

Defendant filed a general demurrer to plaintiff's complaint, which, for the purpose of the hearing, admitted all material allegations of the complaint. The trial court sustained the demurrer and, plaintiff electing to stand on her complaint, dismissed the cause and entered judgment for costs against her. Error is assigned on this ruling.

Plaintiff in her brief states that this is an action at law for recovery of damages resulting to her from the wrong committed by defendant, and that the wrong consisted in converting the note and mortgage to defendant's own use by releasing the mortgage and selling the land, thereby destroying the security that plaintiff held for the payment of her note. Defendant concedes that if plaintiff had elected to do so, she could have sued in contract for failure to perform the promise to return the security.

In Lininger Implement Co. v. Queen City Foundry Co., 73 Colo. 412, 216 P. 527, 529, we held that the mere breach of a contract will not support an action in trover, and that conversion means 'any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another.' We think that there is more than a breach of contract in this case. The contract was to use the note for a specific purpose and return it. The plaintiff had a qualified property interest in the note and mortgage. When the defendant completely destroyed them, he not only breached his contract, but exercised dominion over the plaintiff's special property right in them to the extent of destroying it. The right to destroy property, if it exists, is an incident to absolute ownership and not an incident to ownership subject to another's qualified property right in the thing destroyed. The destruction of the security in this case constituted a conversion.

Defendant further contends that plaintiff has brought her action in tort for fraud and deceit and that the allegations in her complaint are not sufficient under our holding in the case of Kilpatrick v. Miller, 55 Colo. 419, 135 P. 780, to sustain her...