18 N.W.2d 213 | Neb. | 1945
This action, commenced in the district court for Douglas county by Raymond Hansen against the Village of Ralston, a municipal corporation, is in trover to recover damages for the conversion of personal property. From a verdict directed in favor of the plaintiff, in which the jury determined his damages to be the sum of $5,166.66, the village appeals.
The plaintiff and appellee will be referred to as Hansen; the defendant and appellant as the village.
The record discloses that in 1937 the village created a project, under the Works Project Administration, to develop a public park. For this purpose it obtained the Cudahy Packing Company’s lake and the Lakewood Country Club’s grounds, which were developed as Ralston Park. In February of 1937 the village entered .into an agreement with George L. Berger to operate it as a public park, golf course and bathing beach. Under this agreement Berger was to purchase, pay for and own all equipment necessary for that purpose.
In order to finance the purchase of the necessary equipment, Berger, on July 15, 1937, entered into an agreement with Henry J. Beal whereby Beal was to and did furnish the money to buy the equipment. Under their agreement the title to the equipment was to be in Beal, subject to Berger’s right to purchase for one dollar after the money advanced had been repaid. This is further evidenced by a bill of sale to all this equipment from Berger to Beal, dated August 15, 1938. Berger never repaid the money advanced by Beal.
After Berger had equipped the park it was opened to the public on May 15, 1938. Berger continued to operate it until August 4, 1939. The village became dissatisfied with his management and canceled his contract on that date.
In order that the village could keep the park operating and that Beal might get back the money he had invested in the park and the equipment, it was then agreed by Despecher, the mayor of the village, Berger and Beal, that
It is not entirely clear from the record but apparently the Ralston Amusement Company, a corporation, came into existence at or about this time. It consisted of Despecher, the mayor, as president, Henry J. Beal, as secretary, and Melvin Bekins. The village leased the park to this company. The company leased it, in turn, to King George, Coschka, Linder, Schuhart and Sklenicka. None of these parties were successful in the operation thereof and as a consequence the village took over." During this time Beal left the equipment in the park and the Ralston Amusement Company paid out its balance on the conditional sales contract with Buller. In August of 1941 the village purchased and had tags placed on the equipment with the following inscription : “The Property of the Village of Ralston.”
During this period, and up until in January of 1943, Beal had a key to the park and he and Berger were given the right to remove any of the equipment upon giving Shields, the village marshal,' a receipt therefor. During 1942 a truck, paint gun, two boats, a table and four chairs and 126 lockers were removed and a boat was sold under this arrangement. On or about January 2 or 3 of 1943 some locker room benches were taken out.
By this time the village board had completely changed its membership from what it had been in 1938. Although it had been permitting Berger and Beal to take equipment out of the park and it had been orally passed down by the members of the board that Beal was the owner of the equipment, nevertheless, after the lockers and benches were taken out the board decided that no more equipment should be removed until it had decided who were the rightful owners thereof. The board caused the locks on the buildings to be changed and, through the town marshal, Berger and Beal
Thereafter Beal transferred all his interest in the equipment to Hansen by a bill of sale dated March 10, 1943. When Hansen appeared to get the equipment he was advised by the village mayor he could not get it unless he appeared before the village board and was able to establish his right thereto*. Neither Hansen, Berger, Beal, nor any one in their behalf ever responded to the board’s request that they appear before it for the purpose of establishing their ownership to the equipment.
The records of the village were very poorly kept and contain no information as to the ownership of the equipment outside of the Berger contract. The evidence establishes that whatever equipment Berger put in the park belongs to Hansen. However, there is some evidence that equipment was purchased for the park through other sources, including $12,000 used for that purpose from the drainage funds.
The village’s principal complaint is to that part of instruction No. 4 given by the court which directs a verdict for Hansen and the court’s refusal to give the instruction it requested.
That part of instruction No. 4 complained of is as fol
The instruction requested by the village is as follows: “You are instructed that ‘Bona fide reasonable detention of property by one who has assumed some duty respecting it, to ascertain its true ownership, or to determine right of demandment to receive it, will not sustain action for conversion.’ ”
It is the duty of the court to direct a verdict on an issue when the evidence which has been offered is not sufficient in law to make out the case of the party who has offered it. However, in reviewing such an issue, on which the trial court directed a verdict in favor of the plaintiff, this court will assume the existence of every material fact favorable to the defendant, which competent evidence tends to establish, and give him the benefit of all logical inferences to be drawn therefrom and if the evidence presents any conflict of a material fact as to the issue, send it back to be submitted to a jury.
Where the defendant has come into the possession of property lawfully or without fault, it is generally necessary to make demand of possession of him before suit will lie since there is no conversion until there has been a refusal to surrender such possession. See 2 Cooley, Torts (4th ed.), sec. 335, p. 517; note, 24 Am. St. Rep. 807; 38 Cyc. 2032. However, a demand and refusal are not essential when it is clear that a demand would have been useless or unavailing. See 65 C. J., sec. 67, p. 47.
The undisputed evidence established that demand was made on the village before suit was brought.
In Farming Corporation v. Bridgeport Bank. 113 Neb. 323, 202 N. W. 911, we held: “A bona fide reasonable detention of property by one who has assumed some duty respecting it, for the purpose of ascertaining its true ownership, or
Did the village have a right to refuse the demands of Beal and Hansen for the purpose of determining who was the owner of the equipment and entitled thereto? This would be true if its qualified refusal was reasonable and in good faith. * There is no question but what the evidence is sufficient to sustain a finding by the jury that the qualified refusal of the village was not reasonable and in good faith and that the village had converted the property to its own use. However, there is evidence that the personnel of the village board changed completely during the period from 1938 to January of 1943; that outside of the Berger contract of 1937 there was nothing in the records of the village to show who owned this equipment; that the only information the board had was from its dealings with Berger and Beal and from some of its members; that after Berger was
The village further complains of the court admitting the testimony of Berger and Buller as to the value of the equipment.
The evidence shows Berger purchased much of the equipment, was in charge thereof during the time he operated the park, helped make the inventory shortly after August 4, 1939, saw it at various times, observed its condition up until in April of 1943 and kept himself informed as to the value of súch equipment.
Buller’s business was the buying and selling of fixtures and supplies. He sold much of the equipment that Berger placed in the park and in April of 1943 observed what equipment was left there and its condition. He was generally posted and familiar with equipment of this kind.
While it is true that a witness who knows nothing about the goods in question does not become competent to testify to their value merely by examining* inventories and invoices, see Dyer v. Rosenthal, 45 Mich. 588, 8 N. W. 560, however, the opinion of a witness who is shown to be acquainted with the property and its value in the market is competent to tes
For the reasons stated, the verdict and the judgment thereon are reversed and set aside and a new trial ordered.
Reversed.