Ted Saum & Co. v. Swaffar, 5-3248
| Decision Date | 13 April 1964 |
| Docket Number | No. 5-3248,5-3248 |
| Citation | 237 Ark. 971,377 S.W.2d 606 |
| Parties | TED SAUM AND COMPANY, a Corporation, Appellant, v. Richard SWAFFAR, Appellee. |
| Court | Arkansas Supreme Court |
John H. Joyce and Glen Wing, Fayetteville, for appellant.
David J. Burleson, Fayetteville, for appellee.
The question presented in this case is the right of the appellee, Richard Swaffar, to maintain the present action for damages against the appellant, Ted Saum and Company, a corporation, based upon the alleged conversion of appellee's truck. This action resulted when Mrs. Ruth Saum brought a foreclosure proceeding in chancery court to collect the balance due on a note made payable to her by the appellee and secured by a chattel mortgage on appellee's truck. The appellee filed a general denial and a cross complaint against Mrs. Saum and the appellant, Ted Saum and Company, a corporation, for damages, alleging an unlawful conversion by them of appellee's truck. The issues were properly joined with the appellant specifically pleading, inter alia, the defense of res judicata.
Upon trial the Chancellor awarded Mrs. Saum a judgment for $1,064.56 in her foreclosure suit against the appellee and dismissed appellee's counterclaim against her for conversion of his truck. The Chancellor awarded appellee judgment for $4,500.00 against appellant as damages for conversion of the truck from which judgment appellant brings this appeal. There is no cross-appeal. For reversal appellant contends that the issue of appellant's liability to appellee is res judicata.
Appellee had driver a truck for appellant for several years before entering military service in August of 1958. He borrowed $3,550.00 from Mrs. Saum to pay off the balance due on his truck. The certificate of title was delivered to him. Since he was unable to sell his truck before entering military service, he left it with appellant under a lease agreement. During a part of his one year in the service appellee's truck was operated pursuant to this agreement. Appellant then sold the truck for $4,500.00 to another driver. The appellee contends it was an absolute sale without his knowledge and consent, therefore, it constituted an unlawful conversion of his property. The appellant contends the sale was conditional subject to appellee's approval and delivery by him of the title certificate. Further, that appellee's truck was always available to him upon payment of the balance of the mortgage on the truck to Mrs. Saum.
In December, 1959, appellee filed an action in the Washington County Circuit Court against Ted Saum, individually, for damages for unlawful conversion of the truck. Neither Mrs. Saum nor appellant, Ted Saum and Company, a corporation, was a party to that suit. Following this the present action was instituted in chancery court and while it was pending, the case in circuit court was tried in November, 1960. The jury returned a verdict for the defendant, Ted Saum, individually, and judgment was rendered in conformity with this verdict. Therefore, the appellant insists that the defense of res judicata is applicable to the present litigation. The appellee, however, contends the issue in this proceeding is not res judicata because the parties are not the same. Also, he argues that the appellant corporation's liability is not limited to the action of one agent but is derived from the action of any of its agents, or the possibility that some agent other than Saum might have been involved in the alleged conversion.
The appellee's pleadings in the previous litigation in circuit court and the present action in chancery court refer to one issue, the alleged conversion of appellee's truck. The only difference between the two law suits, as between appellant and appellee, is that in the first one appellee names Ted Saum, individually, the defendant and in the present proceeding appellee names Ted Saum and Company, a corporation, as the defendant. Also, the cross complaint filed by appellee in the present action alleges: '* *...
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