S. S. Jacobs Co. v. Weyrick

• Decision Date: 14 May 1964
• Docket Number: No. E-250,E-250
• Parties: S. S. JACOBS COMPANY, a corporation, Appellant, v. W. B. WEYRICK, Appellee.
• Court: Florida District Court of Appeals

Page 246

164 So.2d 246

S. S. JACOBS COMPANY, a corporation, Appellant, v. W. B. WEYRICK, Appellee.

No. E-250.

District Court of Appeal of Florida, First District.

May 14, 1964.

Rehearing Denied June 9, 1964.

Reinstine, Reinstine & Panken, Jacksonville, for appellant.

Robinson & Randle, Jacksonville, for appellee.

RAWLS, Judge.

In an action for conversion defendant S. S. Jacobs Company has appealed from an adverse final judgment entered by the Circuit Court for Duval County based upon a jury verdict.

The question submitted for our determination is whether the trial court erred in denying defendant's motions for a directed verdict on the grounds: 1. that there was insufficient evidence of defendant's conversion of plaintiff Weyrick's property to submit the question to the jury, and 2. that the plaintiff failed to show the market value of the wallpaper at the time of the alleged conversion. The determination of the first point is dependent upon a construction of the description contained in the lease of the premises herein concerned.

The uncontroverted facts established by the evidence and pertinent to the consideration of the above question, are as follows:

On March 6, 1952 Weyrick, as lessee, entered into a written lease with one Bertie H. Buck, owner, for the premises described as: 'That certain storeroom known as eleven (11) West Church Street'. Weyrick went into possession of the premises including a small shed, located about twelve feet to the rear of the main building, and utilized the shed as a storage room for equipment and stock used in connection with his retail wallpaper business. This shed was connected to the main building by a common brick wall on the west as evidenced by a diagram exhibited by the defendant to the jury.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On November 14, 1955, during the tenure of Weyrick's second lease, Buckman, Ulmer & Mitchell, as agent for owner Buck, advised Weyrick by letter to vacate the shed stating that same was under lease to Athen's Restaurant. When asked what was his response to that letter, Weyrick testified: 'I said if they wanted possession of it, they could take it through due process of law.'

On February 20, 1957 the parties entered into an extension of the lease for an additional two year term. On December 19, 1958, the parties entered into a three year lease which continued to describe the premises by the address. Weyrick was at all times since 1952 in possession of the shed.

On August 15, 1960 owner Buck leased the entire block on which the premises in question were situated to The Selwyn Corporation for a period of 99 years. This lease recited that it was 'subject to' certain named leases including the one between Buck and Weyrick and that the '* * * Lessee (Selwyn) has examined and is familiar with the terms and stipulations of each of said leases and tenancies * * *' This 99 year lease to Selwyn Corporation constitutes the genesis of the present controversy.

On February 8, 1961 Robert H. Jacobs ¹ sent men to tear down the shed. Mrs. Weyrick, in an ensuing telephone conversation, requested Jacobs to consult with her attorney and he informed her that he was going to tear the shed down and she must vacate. On February 9, 1961 Jacobs, by letter, informed Weyrick: '* * * Your attorney has advised me that you have certain material stored in the warehouse located on my property to the rear of the storeroom which you lease from me on Church Street. This is to put you on notice that you are to remove this material by Monday, February 13, 1961. Otherwise, I will have this material removed.' [Emphasis supplied.]

On February 14, 1961, eight or ten men acting under orders from Jacobs removed the merchandise and razed the shed. Plaintiff's property was then stored in a warehouse belonging to S. S. Jacobs Company and a warehouse receipt was sent to Weyrick. Later the merchandise was disposed of in some way by Jacobs's employees.

The amended complaint alleged plaintiff's storage of goods in, and his possession and maintenance of, the shed used in connection with the retail wallpaper business he owned and operated at 11 West Church Street, Jacksonville, Florida. It alleged defendant's willful, malicious, wanton and forcible entry into said storage room and its removal and conversion to its own use the goods and chattels stored there. Defendant's answer admitted the storage of goods and the removal of same by defendant, denied the forcible entry and conversion and affirmatively alleged: '* * * that the said storeroom to the rear of the business store, located at 11 West Church Street, was owned and possessed by Defendant and was not part of the premises leased to the Plaintiff * * *' The parties stipulated: 'The defendant did, on February 14, 1961, enter the building referred to in the complaint and removed therefrom the contents thereof.'

Consequently, the crucial question posed by the pleadings and the factual disputes presented to the jury for its determination concern the interpretation and intention of the parties as to the extent of the leased premises demised to Weyrick under the description of 'that certain storeroom located at 11 West Church Street.'

The general rule is that a description of the leased premises by a street number includes as much of the lot upon which the building is situated as is necessary for the purpose for which it was let. Even the lease of a particular part of a building ordinarily gives the lessee no rights outside such part, except such as were intended to be included as appurtenant to the beneficial enjoyment thereof, or such as it was manifest had been designed and appropriated for the benefit of the leased premises. Everything which belongs to, or is used with, and appurtenant to, the demised premises and which is reasonably essential to the enjoyment of the leased premises passes as an incident thereto, unless specially reserved. The ultimate question depends upon the intent of the parties as interpreted in the light of surrounding circumstances. ²

The evidence adduced at the trial disclosed that Weyrick considered the shed as part of the premises he leased; that he refloored, repaired, padlocked and appropriated and used the same in connection with the purpose for which the premises were leased; that in 1955 the rental agents of the owner Buck knew Weyrick had possession, but on two occasions thereafter again leased the premises to him without inserting a more limited or specific description than that previously used; and that defendant, in addition to using the same rental collecting agent Buck had used, had actual knowledge of Weyrick's claim.

The question being one of fact as to the intent of the parties, it was correctly submitted, under proper instructions, to the jury which concluded that the shed was part of the leased premises. Such conclusion was based upon substantial competent evidence and was sufficient to sustain allegations set out in the complaint of a wrongful conversion on the part of defendant.

Florida has long recognized that '* * * conversion takes place when the trespasser * * * assumes dominion over * * * [the property] that is inconsistent with the rights of the true owner'. ³ '* * * [T]he essential elements of a conversion is a wrongful deprivation of property to the owner * * *' ⁴ '* * * [B]efore a party may be held guilty of such conversion, it must be shown that there was exercised a positive, overt act or acts of dominion or...