Strickland v. Quality Bldg. & Sec. Co.

• Decision Date: 09 June 1952
• Docket Number: No. 4-9815,4-9815
• Citation: 249 S.W.2d 557,220 Ark. 708
• Parties: STRICKLAND v. QUALITY BUILDING & SECURITY CO.
• Court: Arkansas Supreme Court

Page 557

249 S.W.2d 557

220 Ark. 708

STRICKLAND v. QUALITY BUILDING & SECURITY CO.

No. 4-9815.

Supreme Court of Arkansas.

June 9, 1952.

James E. McDaniel and Homer E. McEwen, Jonesboro, for appellant.

Frank Sloan and W. B. Howard, Jonesboro, for appellee.

MILLWEE, Justice.

Appellee, Quality Building and Security Co., recovered judgment in the sum of $601.89 in circuit court against appellant, J. A. Strickland, for the conversion of an automobile.

The car in question is a 1947 model Chevrolet which was purchased by J. R. Smith from Dean Motors, Inc., in San Diego, California, on August 13, 1949. The purchase was under a written conditional sales contract which provided for twenty-four consecutive monthly payments of $51.49 each commencing September 15, 1949. The seller assigned the contract to appellee on the date of purchase. Shortly after the sale Smith brought the car to Arkansas without permission of the seller.

While the car was in Arkansas, appellant brought an action in a justice of the peace court against J. R. Smith upon an account for repairs which appellant had made to another car for Smith before the latter went to California. The car in controversy was attached in the justice court proceedings in which appellant recovered judgment against Smith and purchased the automobile at the attachment sale. While appellant was still in possession of the car, he was notified of appellee's claim of title by counsel for appellee who also requested possession of the car. Appellant thereafter sold the car to another party and appellee filed the instant action in replevin and for conversion of the automobile.

At the conclusion of the evidence both parties requested a directed verdict. The trial court instructed the jury to find for appellee for the value of the automobile on the date of sale and conversion by appellant. The jury fixed said value at $550 to which was added the sum of $51.89 interest (6% from the date of conversion) upon appellee's motion for judgment notwithstanding the verdict.

Appellant first contends the trial court erred in instructing the jury on the measure of damages. Since appellant has abstracted none of the instructions given or refused, we must assume that the jury was correctly instructed on this issue. In this connection it is also argued that witnesses for appellee were incompetent to testify as to the value of the car in Arkansas. These witnesses were experienced California automobile dealers who for a number of years had purchased cars in the area of Arkansas, Texas, Mississippi and Louisiana and testified that they were familiar with the market value of automobiles like the one in question in said area on the date of conversion. One of the witnesses was familiar with the car in question and there is no contention that the market value in Craighead County is different from that of the state as a whole. Moreover, appellant, who is an expert on automobile values in Craighead County, did not deny the testimony of counsel for appellee that appellant told him the car was worth $800. The testimony was competent and sufficient to sustain the verdict of the jury on the question of value.

It is next contended that appellee failed to show any amount due it by the purchaser, J. R. Smith, and, therefore, failed to prove sufficient title to support an action for conversion. Although appellant failed to abstract the conditional sales contract and the assignment to appellee, this deficiency has been supplied by appellee. The contract on its face shows no payments by Smith and also shows that if he had made each payment on its due date, only seven of the twenty-four payments would have been made when the complaint was filed. The contract also provided that the purchaser should not remove the car from California without written permission of the holder of the contract and that a breach of such provision entitled the holder to terminate the contract and take immediate possession of the car. It is undisputed that J. R. Smith violated this provision of the contract.

The case of Black v. Roberson, 87 Ark. 641, 112 S.W. 402, 403, relied on by appellant, was a replevin action. While the court held under the facts there presented that the burden of proof on the whole case was on the plaintiff, the following observation was made on the question of proof of payment: 'The burden of proof is upon the party pleading payment to establish it; and, had the pleadings or admissions of the parties admitted the sale of the mule and the reservation of the title, then the burden would have been upon the defendant to prove payment, and it...