217 S.W.2d 254 | Ark. | 1949
Lead Opinion
Appellee, a resident of Lonoke, in his suit against appellant, a used car dealer in Little Rock, for conversion of appellee's automobile by appellant, was awarded damages in the sum of $450 by the trial jury. From judgment in accordance with the verdict, appellant prosecutes this appeal.
Appellee, being the owner of the automobile involved herein, sold same to Norman Fitch for $550 of which $100 was paid and a note to appellee, by which title to the car was retained in appellee until purchase money was paid, was executed by Fitch for the balance. A short time thereafter Fitch traded the car to appellant. Upon learning of the trade appellee went to Little Rock and found the automobile on appellant's lot, and according to appellee's testimony, he was told by *573 appellant that, if he would bring his papers to show ownership, he could get the car. On his return with the papers, the following day, he was unable to obtain the car. It was also shown that when Fitch traded the automobile to appellant the registration certificate which Fitch had was made out in appellee's name.
Appellant testified that he sold the car the same day that he obtained it. Admitting that the car was on his lot when appellee and his employer came to see him about it, he stated that it was there "for a check-over." He stated that he sold the car before he found out about appellee's claim, but had re-possessed it and had it at the time of the trial.
The lower court denied appellant's request for a peremptory instruction in his favor, but gave the following instructions as to appellant's liability: "If you find that plaintiff was the owner of the 1937 Chrysler, that he notified defendant of his title while the car was in defendant's control and demanded it from defendant, and that defendant, despite such notice and demand, sold the car, such an act on defendant's part would be a conversion by defendant of plaintiff's personal property and you will find for plaintiff."
. . . . . .
"You are instructed that if you find from the evidence that the defendant Phil Schwartz had parted with his title to and control over the automobile involved in this lawsuit prior to any notice given him by the plaintiff of his claim of ownership then you will find for the defendant Phil Schwartz."
Appellant's contention is that the facts in the case at bar and those in the case of Loden v. Paris Auto Co.,
The judgment of the lower court is affirmed.
The Chief Justice did not participate in consideration or decision of this case.
Dissenting Opinion
I respectfully dissent, because — as I see it — the majority is (1) doing violence to our holding in Loden v. Paris Auto Co., infra: and also (2) inaugurating a substantial departure from our previous holdings by permitting a conversion action in a situation such as the one here.
I. Doing Violence to Loden v. Paris Auto Co. That case is reported in
Then, after reviewing some of our cases which hold that the buyer under a conditional sales contract has an interest in the property which he can sell, the opinion has this language: "It will therefore be seen from the above decisions, and many others that might be cited, that the selling of the Dodge car by Parsons was not an act of conversion on his part, as he had the rightful possession to the car and the lawful right to sell it, and there could be no conversion on the part of appellant in accepting said car and selling it in the usual course of business, especially since he had no knowledge of any rights of appellee in and to the car." (Italics supplied.)
The last clause in the above quotation is italicized because it was merely incidental to the holding, yet the majority in the case at bar has seized on this clause in an effort to make a distinction sufficient to justify the present holding. I submit that the entire reasoning in Loden v. Paris Auto Co. is against any action by conversion, and that the present holding is doing violence to that case.
II. Inaugurating a Substantial Departure. Our cases have all the time held that when the purchaser defaults in the payment of the purchase price, then the seller in the conditional sales contract has two remedies, and only two. In Olson v. Moody, Night Lewis, Inc.,
Over a score of cases, all to the same effect, are collected in West's Arkansas Digest, "Sales," 479. In the present opinion the majority is allowing the seller in a conditional sales contract to have a third remedy — i.e., an action for conversion against the person who purchased the property from the conditional buyer. This is certainly a substantial departure!
Where was the act of conversion in the case at bar? In Barnett Bros. Mercantile Co. v. Jarrett,
Likewise, in Hooten v. State,
And in Bouvier's Law Dictionary, 3rd Ed., p. 669, conversion is defined as being: "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights."
In short, there can be no conversion until there has been a "wrongful exercise of dominion over property." I find no such occurrence in the case at bar; because Fitch had a right to sell the car to Schwartz, and by the same token Schwartz had a right to sell the car to a third person. All of this was without loss of the rights of Fulmer to replevin the car. In Dedman v. Earle,
Many cases to the same effect are collected in West's Arkansas Digest, "Sales," 472.
To epitomize: Fitch could sell to Schwartz and Schwartz could sell to a third person — all without Fulmer's loss of retained title. That is what happened in the case at bar; so I cannot see that there was any "wrongful exercise of dominion" by Schwartz so as to constitute a conversion. When the transfer is legal there can be nothing wrong, yet the majority is now allowing an action for conversion when there has been no "wrongful exercise of dominion." Schwartz did not destroy the car. In fact, he repossessed it from the person to whom he sold it; and the car was in Schwartz's possession at the time of the trial in the Circuit Court.
There are many cases from other jurisdictions which hold that conversion occurs when the buyer under a conditional sales contract sells the property to a third person. See Annotation in 73 A.L.R. 799 listing cases and jurisdictions following that rule. But it is significant that no Arkansas case so holding is cited in the said annotation; and no Arkansas case that I can find has ever so held.
In the concluding paragraph of the majority opinion this statement appears: "Therefore, appellant's sale of the car, after he learned that appellee really owned it, was not a transaction made in good faith or in the usual course of business. Such a sale amounted to a conversion of the property, for which appellant became liable to appellee."
The only Arkansas case cited by the majority to sustain the foregoing quotation is Carroll v. Wiggins,
To summarize: the majority opinion in the case at bar is a substantial departure from our previous holdings. For the reasons herein stated, I respectfully dissent.