Waggoner v. Haralampus

• Decision Date: 17 March 1977
• Citation: 277 Or. 601,561 P.2d 586
• Parties: George WAGGONER, Appellant, v. Alexander HARALAMPUS et al., Respondents.
• Court: Oregon Supreme Court

Page 586

561 P.2d 586

277 Or. 601

George WAGGONER, Appellant, v. Alexander HARALAMPUS et al., Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 11, 1977.

Decided March 17, 1977.

Gerald R. Pullen, Portland, argued the cause and filed the brief for appellant.

Cleveland C. Cory, Portland, argued the cause for respondent Pioneer National Title Insurance Company, a corporation. With him on the brief was Robert C. MacDonald, Astoria.

Thomas Sauberli, Portland, argued the cause for respondent William M. Zerman, dba Golden Arrow Realty. With him on the brief were Vergeer, Samuels, Roehr & Sweek, Portland.

Stephen L. Roman, Astoria, filed a brief for respondents Alexander Haralampus and Elaine Hansen. With him on the brief were Zafiratos & Roman, Astoria.

Before HOWELL, P.J., and BRYSON, LINDE and MENGLER, JJ.

MENGLER, Justice Pro Tem.

This is an appeal from a judgment for the defendants Haralampus and Hansen entered on a jury verdict in an action at law for money had and received. Involuntary nonsuits were granted as to all other defendants.

The plaintiff, as buyer, and the defendants Haralampus and Hansen, as sellers, on January 15, 1973, signed an earnest money receipt for the sale of a restaurant known as Hara's. The earnest money receipt provided in part: 'Sale is contingent on approval of city license and OLCC commission.' One thousand dollars was paid as earnest money. The balance of a $20,000 downpayment was to be made upon delivery of a preliminary title report and the execution of a contract of sale. Several weeks prior to the execution of the contract, plaintiff brought a certified check for.$19,000 to the office of defendant Zafiratos, attorney for the sellers. A contract of sale was executed March 12, 1973, which provided that the sum of $20,000 was to be paid upon execution.

The parties to the sale also executed on March 12, 1973, two sets of escrow instructions. The first, signed by the plaintiff, recited that he was paying herewith $667.75 covering estimated closing costs, and that '(y)ou have received my deposit in the amount of $20,000.00.' The instructions further authorized the escrow agent upon issuance of the title insurance policy to pay the escrow agent $128.75 fore escrow and recording fees, $539.01 for property taxes, and $20,000 as downpayment. The second set of escrow instructions was signed by the defendants Haralampus and Hansen. They authorized the escrow agent, upon issuance of a title insurance policy, to pay the following:

1. Defendant Pioneer National $308.75

2. Defendant Zafiratos $500

3. Defendant Golden Arrow Realty $6,300

4. Clatsop County Tax Collector $1,502.48

5. Balance to sellers

The closing on March 12, 1973, at the office of the defendant Pioneer National, was attended by the defendants Haralampus and Hansen; the plaintiff; Golden Arrow Realty; a Mrs. Simpson, an employe of the escrow agent; and defendant Zafiratos (who was not present throughout). The testimony is that the plaintiff there agreed that it was all right for the escrow agent to disburse the funds. Thereafter the escrow was closed and the money was distributed by the defendant Pioneer National in accordance with the instructions. Subsequently, plaintiff's application for a liquor license was denied.

Plaintiff testified that he received from defendant Pioneer National a check for $6 and an escrow statement, which is a detailed summary of the distribution. He also testified that he cashed the check. He testified that he understood the money had been disbursed, and tht he made no objection to the defendant Pioneer National. No demand was made upon any of the defendants until May 1974 when the action was filed.

The first assignment of error is that the court erred in allowing defendants' motion to strike the allegations of conversion from plaintiff's amended complaint on the ground that a sum of money cannot be the subject of conversion.

The general rule is that conversion will lie when the money was wrongfully received by the party charged with conversion, or an agent is obligated to return specific money to the party claiming it. Salem Traction Co. v. Anson, 41 Or. 562, 67 P. 1015, 69 P. 675 (1902); Wood Ind'l Corp. v. Rose, 271 Or. 103, 530 P.2d 1245 (1975).

The evidence is that $1,000 earnest money was paid to the defendants on January 15, 1973, and turned over, without objection by plaintiff, to the escrow agent on March 12, 1973, as part of the required downpayment. The.$19,000 balance of the...