Opinion
No. 12,465.
Decided July 6, 1931. Rehearing denied September 14, 1931.
Action for conversion. Judgment for plaintiff.
Affirmed.
1. CONVERSION — Defined. Conversion is any distinct unauthorized act of dominion or ownership exercised by one person: over personal property belonging to another.
2. Offer to Return Goods. When one admittedly has in his possession goods and chattels belonging to another, something more than a mere offer to permit the owner to repossess himself of his property is necessary if he wishes to avoid an action in conversion for damages.
3. APPEAL AND ERROR — Sufficiency of Evidence. A judgment based on conflicting evidence will not be disturbed on review on the ground of insufficiency of the evidence if there is sufficient evidence to support it.
Error to the District Court of the City and County of Denver, Hon. Frank McDonough, Sr., Judge.
Mr. H. BERMAN, Mr. FRED N. HOLLAND, for plaintiff in error.
Mr. HUBERT L. SHATTUCK, for defendant in error.
JENNIE R. Becker, defendant in error, hereinafter referred to as plaintiff, brought an action against B. Lutz, plaintiff in error, hereinafter referred to as defendant, to recover damages for the conversion of certain property. Trial was had to the court without the intervention of a jury; certain findings of fact were made, and judgment rendered for plaintiff. Defendant prosecutes this writ, assigning as error the insufficiency of the evidence to warrant the court in finding defendant guilty of conversion.
Defendant foreclosed a chattel mortgage on certain personal property in an apartment house owned and operated by plaintiff's sister, and took possession of all the chattels therein; plaintiff had a bill of sale, dated subsequent to the chattel mortgage, for certain personal property in the house, and claimed to own other personal property therein which was not included in the chattel mortgage; she demanded of defendant possession of such property as she claimed to own, which demand, she alleges, was refused, and this action resulted.
Defendant, in his answer and at the trial, disavowed any intention of claiming title to or retaining possession of any personal property except such to which he was entitled by virtue of his chattel mortgage, but admitted, at the trial, that he had taken possession of the apartment house under a foreclosure sale, and, also, that he had taken possession of all the personalty therein, and had continuously thereafter used all the furniture and other personal property in conducting his apartment house business. The portion of defendant's answer in which a denial of the conversion is attempted, reads: "* * * defendant alleges that plaintiff has demanded of defendant certain chattels and that plaintiff always has and still does offer to deliver to plaintiff whatever part of the chattels there are located in said premises, as aforesaid, which do not belong to the defendant." (Italics ours.)
The defendant, at the trial, testified:
"Q. Whatever furniture there was there when you took possession you have continued to use from that time until this? A. Yes sir.
"Q. And you claimed it as your own? A. Yes sir.
"Q. Now, at that time [when possession was taken] you believed that this chattel mortgage covered all of the furniture in that apartment house, didn't you? A. No.
"Q. Now, you have used that furniture and your tenants have used it from May 13th down to now, haven't they? A. Yes sir."
Defendant prepared the chattel mortgage, under the foreclosure of which he claimed title to all the furniture and other chattels in the apartment house composed of eighteen apartments; in this mortgage the furniture and other personal property in ten designated apartments is specifically described, while in seven of the remaining apartments the only furniture designated is: "All Beds, Spring and Mattress Linoleum, Gas Range, Ice Box, containing in Apts. * * *."
Plaintiff's evidence is to the effect that, when possession of the apartment house was taken by defendant, seven apartments were completely furnished with articles other than those upon which defendant had a chattel mortgage, which articles were purchased with money provided by plaintiff after the date of the chattel mortgage, and for which plaintiff had a bill of sale; that defendant commingled this furniture, to which he had no claim, with his furniture, so that it was difficult to segregate the same, and forbade plaintiff the right to come on the premises and identify her property; that defendant, at the repeated solicitation and insistence of plaintiff, made repeated appointments to go to the apartment house with her and her attorney to identify and remove her property, but failed on every occasion except one to keep the appointments; that plaintiff's attorney could not identify her property because the same had been moved by defendant from the apartments in which it was left; that defendant disputed plaintiff's title, and under a general clause in the chattel mortgage, claimed at first to own all the furniture, and it was only upon plaintiff's production of the bill of sale and receipted bills for the same, that defendant ever conceded that plaintiff might have some right there; that the offer of defendant to return the property to which plaintiff claimed title came after the action was commenced. Plaintiff's attorney, in testifying, stated: "Q. All that is more or less a conclusion; but I want to get this straight, that he neither refused to give you anything nor did he pick it up and hand it to you, but he said, I have got lots of furniture, take whatever you want, or something like that? A. He just simply said if you can prove title to anything that is in the rooming house I have got plenty of stuff in the store room, or, I have got all kinds of furniture. But he never set the stuff out and he never indicated to me, or intimated that I could get it or where I could get it or where it was, and it was all mixed up with his stuff so that I could not tell one thing from another."
A careful reading of defendant's testimony convinces us that it lacked the good faith and fairness that should characterize it, and this was evidently the conclusion of the trial judge, for, had he believed defendant, it would have been impossible for him to have rendered a judgment against him. The trial judge, in disposing of the motion for a nonsuit, said, inter alia: "To go through the idle ceremony of saying you can have the goods but not delivering them, not offering to segregate them, using them, shifting them about in the rooms, it is pure sophistry and does not fool the court nor anybody else where a man says, take your goods, but himself keeps them." This comment by the trial court implies that the offer of the defendant was not made in good faith, and that, in fact, he never made an honest attempt or effort to restore to plaintiff the property which he retained in his possession and use, and which he admits did not belong to him.
Conversion is any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another: Lininger Implement Co. v. Foundry Co., 73 Colo. 412, 416, 216 P. 527; Minchew v. West, 78 Colo. 254, 256, 241 P. 541.
The finding of the trial court, at the conclusion of all the evidence was: "1. That demand was made by plaintiff of the defendant for the return of the goods converted on to-wit June 15, 1926, which demand had never been complied with by the plaintiff, who, while offering, so it is said, to return said goods, has never done so, has retained possession of them, commingled them with the goods of which possession was taken under such chattel mortgage and has apparently moved them in and about the various apartments, exercised dominion and control over them, and as the owner of the real estate has rented all of the apartments together with the contents thereof for about three years last past." * * *
The answer itself tendered an issue of ownership, and there was no such good faith displayed by the defendant to warrant the court in assuming that this feigned offer to return the goods, if the ownership thereof was proven, was a genuine offer. When one admittedly has in his possession goods and chattels belonging to another, something more than a mere offer to permit the owner to repossess himself of his own property is necessary, if he desires to avoid an action in conversion for damages.
The evidence before the trial court was disputed in every important particular, and the trial judge, with the advantage of seeing the witnesses and hearing them testify, observing their demeanor and attitude, found for the plaintiff. Under these circumstances we will not disturb the judgment, when there is sufficient evidence to support it.
Judgment affirmed.
MR. JUSTICE HILLIARD dissents.