Sikora v. Barney, 20014

• Citation: 138 Ind.App. 686,207 N.E.2d 846
• Decision Date: 15 June 1965
• Docket Number: No. 2,No. 20014,20014,2
• Parties: Paul SIKORA, Appellant, v. William BARNEY, Michael Matovina, and Anne Matovina, Appellees
• Court: Indiana Appellate Court

Page 846

207 N.E.2d 846

138 Ind.App. 686

Paul SIKORA, Appellant, v. William BARNEY, Michael Matovina, and Anne Matovina,

Appellees.

No. 20014.

Appellate Court of Indiana, Division No. 2.

June 15, 1965.

Rehearing Denied Aug. 11, 1965.

[138 INDAPP 687]

Owen W. Crumpacker, George V. Burbach, Kenneth D. Reed, Crumpacker, Burbach & Abrahamson, Hammond, for appellant.

Paul B. Huebner, Huebner & Huebner, Hammond, for appellee William Barney.

HUNTER, Judge.

This action was instituted by appellee, Barney in the Lake Superior Court upon the filing of a complaint in two paragraphs against appellant, Sikora and appellees, Michael and Anne Matovina. The first paragraph constituted a complaint to foreclose a mechanic's lien with which we are not here concerned on this appeal. The second paragraph of the complaint alleged the essential elements of tortious conversion of personalty by Sikora and the Matovinas. Upon the latter paragraph in conversion, the trial court entered judgment in favor of appellee Barney and allowed damages in the sum of Three Thousand ($3,000) Dollars for the tortious conversion of an unattached house by appellant Sikora. The trial court further found that Barney should take nothing by his paragraph in foreclosure of a mechanic's lien against Michael and Anne Matovina and also that he take nothing against the Matovinas in conversion. The Matovinas are therefore parties to this appeal only because they were parties below. We are therefore only concerned with appellant Sikora and appellee Barney in this decision. The trial court [138 INDAPP 688] further found in favor of appellant Sikora on his cross-complaint in set-off against Barney and allowed damages thereon in the sum of One Thousand Nine Hundred and Twenty ($1,920) Dollars leaving a difference owing from Sikora to Barney of One Thousand and Eighty ($1,080) Dollars.

Appellant assigns the error that the trial court erred in overruling his motion for a new trial. Within this assignment, appellant urges three (3) propositions:

(1) The evidence is insufficient to sustain a finding in tortious conversion.

(2) The amount of damages in the sum of Three Thousand ($3,000) Dollars awarded appellee Barney was excessive.

(3) The amount of damages in the sum of One Thousand Nine Hundred and Twenty ($1,920) Dollars awarded appellant Sikora was too small.

We will separately consider these propositions. To provide a proper background for our decision herein, we must set forth the pertinent facts of this case which are as follows:

Appellee Barney entered into an agreement with the Borden Company in Hammond, Indiana to remove some frame structures from its premises. Thereupon, Barney entered into a written agreement with appellant Sikora, a housemover, which provided in substance that Sikora move four (4) houses (referred to herein as houses 'A', 'B', 'C' and 'D') from the Borden lot to designated places within the City of Hammond, Indiana. The consideration for moving houses 'A' and 'B' was One Thousand and Ten ($1,010) Dollars apiece and the consideration to be paid for moving houses 'C' and 'D' was Nine Hundred and Sixty ($960) Dollars apiece. The house with which we are herein concerned as being subject to the suit in conversion is house 'C'.

Sikora was attempting to move house 'C' to a lot designated by Barney. The Hammond City Police stopped him as he was about to place the building on the lot. He was apparently restrained from placing the house because of an alleged[138 INDAPP 689] violation by Barney and one Solan of the Hammond Building Code in Connection with placing this particular building at this location. The Police then directed Sikora to move the house partially on this lot so that traffic would not be obstructed. Sikora then left the house, still resting on his equipment, at this location for approximately sixteen (16) weeks. Barney was, during this time, attempting to arrange that another lot nearby be used for the location of house 'C'. After the sixteen (16) weeks had passed, Sikora 'sold' the building to the Matovinas for One Thousand and Five Hundred ($1,500) Dollars keeping the money for himself. As part of this purported sale, Sikora delivered to the Matovinas a Bill of Sale which contained a sworn affidavit to the effect that Sikora was the owner of house 'C'.

Appellant urges that there is no evidence to support the trial court's finding that he committed a tortious conversion. His argument on this point is based upon the rule of the case of Beaver Products Co. v. Voorhees (1924), 81 Ind.App. 181, 142 N.E. 717. This case held that an owner of personal property, who had consented that such property could be sold by the agent, could not maintain an action for conversion of that property against that agent after the property was sold. Appellant claims that he attained authority to assert ownership and sell the house because of an alleged statement by Barney to Sikora to the effect that Sikora should 'locate a buyer, somebody who would like to buy a house and have it moved'. Appellant asserts, upon this statement, that he had carte blanc authority to sell the house as if he were its owner and he could therefore not have committed a conversion.

[1, 2] Conversion is defined as:

'The exercise of dominion over personal property to the exclusion and in defiance of the rights of the owner or withholding it from his lawful possession under a claim of title inconsistent with the owners (title) * * *.' Hardy v. Heeter (1951), 120 Ind.App. 711, 717, 96 N.E.2d 682, 684, citing Prudential Ins. Co. v. Thatcher (1937), 104 Ind.App. 14, 20, 4 N.E.2d 574.

[138 INDAPP 690] More specifically, a sale and delivery of goods made by one not an owner without authority of the owner, constitutes tortious conversion. Miller et al. v. Long (1956), 126 Ind.App. 482, 491, 131 N.E.2d 348. Considering the evidence in the instant case in toto, we cannot conclude as a matter of law that appellant Sikora attained absolute authority from Barney to exercise dominion over building 'C' to such an extent that he could sell this property as if he were the owner of such.

[3, 4] Appellant admitted Barney's ownership of the building at the trial. Barney denied that the statement to Sikora to 'locate a buyer' gave him authority to consummate a sale. There was no writing giving authority to sell to Sikora and the parties had previously only dealt in writing before. Barney had previously made all the arrangements concerning...