Shelby Engineering Co., Inc. v. Action Steel Supply, Inc.

• Decision Date: 26 March 1999
• Docket Number: No. 49A02-9804-CV-387,49A02-9804-CV-387
• Citation: 707 N.E.2d 1026
• Parties: SHELBY ENGINEERING CO., INC., Appellant-Defendant, v. ACTION STEEL SUPPLY, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1026

707 N.E.2d 1026

SHELBY ENGINEERING CO., INC., Appellant-Defendant, v. ACTION STEEL SUPPLY, INC., Appellee-Plaintiff.

No. 49A02-9804-CV-387.

Court of Appeals of Indiana.

March 26, 1999.

Robert W. McNevin, Jr., Indianapolis, Indiana, Attorney for Appellant.

Sidney M. Mishkin, Lesa C. Fall, Mishkin & Fall, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge

Due to the fraudulent conduct of one of its tenants, Shelby Engineering Co., Inc. received money belonging to Action Steel Supply, Inc. When Shelby Engineering refused to return the money, Action Steel filed suit against Shelby Engineering as well as the tenant. The case proceeded to a bench trial after which the trial court entered judgment in Action Steel's favor. Shelby Engineering now appeals raising numerous allegations of error which we consolidate and rephrase as: (1) was the evidence sufficient to sustain the judgment, and (2) did the amount of the judgment represent double recovery.

We affirm. ¹

The record shows that in the fall of 1996 Action Steel was in the market for an overhead crane when it discovered one for sale in a building occupied by Thomas Melvin. Shelby Engineering owned the building but was leasing it to Melvin who was doing business as Speedway Pallet. Shelby Engineering also owned the crane and had agreed to pay Melvin a $500.00 commission if he succeeded in selling it. Giving the impression that it was he who owned the crane, Melvin entered negotiations with Action Steel for the crane's purchase. The parties entered a written agreement that provided for a $25,000.00 purchase price with a $14,000.00 down payment. Melvin received the down payment, deposited it into his own checking account, and purchased a cashier's check for $8,000.00. The check was made payable to Shelby Engineering. He then presented the check to George Hilgemeier, the president of Shelby Engineering, indicating that it represented a down payment from a buyer who was purchasing the crane. Melvin told Hilgemeier that the purchase price was $24,000.00. When asked the name of the buyer, Melvin did not respond. Hilgemeier informed Melvin that he wanted a written agreement from the party wishing to buy the crane along with proof of the buyer's insurance. When three weeks had passed and Melvin still had not provided the written agreement or the name of the buyer, Hilgemeier wrote a letter to Melvin indicating the crane was no longer for sale. The letter again requested the name of the buyer so that the $8,000.00 could be refunded. In response Melvin produced a fictitious bill of sale that included the name of a fictitious buyer along with a fictitious address. When Shelby Engineering was unable to contact the fictitious person it eventually concluded that no such person existed. Thereafter, Action Steel discovered that Shelby Engineering was the true owner of the crane. Hilgemeier and a representative of Action Steel then tried to negotiate a deal but could not reach an agreement. During the failed negotiations Hilgemeier acknowledged that the $8,000.00 belonged to Action Steel. However even after a demand, Shelby Engineering refused to return the money. Action Steel then filed suit against Shelby Engineering on various theories of liability including unjust enrichment and money had and received. Shelby Engineering also sued Thomas Melvin on various theories of liability including fraud and conversion. After a bench trial the trial court entered judgment in favor of Action Steel and against Melvin in the amount $42,000.00, along with interest and attorney fees, and entered judgment in favor of Action Steel and against Shelby Engineering in the amount of $8,000.00. Shelby Engineering now appeals.

I.

Shelby Engineering contends the trial court erred in entering judgment against it because "[there is no legal or equitable theory of law that would entitle Action [Steel] to a judgment in its favor....]" Brief of Appellant at 13. Shelby Engineering is mistaken. We first note that neither party requested special findings of fact and the trial court did not gratuitously enter such findings. Thus, we review the decision of the trial court under the general judgment standard. Klebes v. Forest Lake Corp., 607 N.E.2d 978, 982 (Ind.Ct.App.1993), trans. denied. A general judgment will be affirmed if it can be sustained upon any legal theory consistent with the evidence. Bedford Recycling, Inc. v. U.S. Granules Corp., 634 N.E.2d 1361, 1363 (Ind.Ct.App.1994), trans. denied. In making this determination we neither reweigh the evidence nor judge the credibility of witnesses; rather, we consider only the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Klebes, 607 N.E.2d at 982.

One of the theories upon which Action Steel proceeded against Shelby Engineering was money had and received. We have noted:

An action for money had and received is an equitable remedy that lies in favor of one person against another, when that other person has received money either from the plaintiff himself or third persons, under such circumstances that in equity and good conscience he ought not to retain the same, and which money, ex aequo et bono, belongs to the plaintiff, and where money has been received by mistake of facts, or without consideration, or upon a consideration that has failed, it may be recovered back. Such an action rests upon an implied promise and may be maintained against the person who received money from the plaintiff under circumstances which in equity and good conscience he should not retain.

Chosnek v. Rolley, 688 N.E.2d 202, 211 (Ind.Ct.App.1997) (quoting Pufahl v. National Bank of Logansport, 129 Ind.App. 191, 195, 154 N.E.2d 119, 120-21 (1958)) (emphasis in original). Shelby Steel acknowledges the theory of money had and received but argues it does not apply to an innocent third party who received the cash in the due course of business, or where a transaction is based on an express contract.

In support of the proposition that it received the money in the due course of business Shelby directs our attention to Ohio Casualty Ins. Co. v. Smith, 297 F.2d 265 (7th Cir.1962). In Ohio Casualty, the court held that a bonding company could not recover a...