holding that damages on a conversion claim are the fair market value of the property at the time of conversion and legal interest from the time of conversion to the date of the verdictSummary of this case from Great Am. Ins. Co. v. NextDay Network Hardware Corp.
[No. 101, October Term, 1949.]
Decided April 19, 1950.
Liens — Motor Vehicle — Vendor of Automobile Who Accepted Note in Part Payment Acquired No Valid Lien on Vehicle in Absence of Judgment on Note — Vendor Acquired No Garageman's Lien, Where He Prevailed upon Vendee's Wife to Surrender Vehicle for Free Repairs and Refused to Return It — Judgment Entered for Vendee for Conversion of Automobile — Conversion — Gist of Is Not Acquisition of Property By Wrongdoer, But Wrongful Deprivation of Possession of Person Entitled Thereto — Forcible Dispossession Not Necessary to Constitute Conversion — Conversion May Consist of Wrongful, Tortious or Unlawful Taking of Property from Another's Possession By Theft, Trespass, Duress or Fraud, and Without His Consent or Approbation, Either Express or Implied — Measure of Damages for Conversion of Personal Property — Fair Market Value of Property at Time of Conversion with Legal Interest Thereon to Date of Verdict — Larceny — One Taking or Retaining Property of Another Without Latter's Consent for Debt Which He in Good Faith Claims to Be Due Him By Owner, Not Guilty of — No Felonious Intent.
In an action to recover for the conversion of an automobile, according to the evidence, defendant who had sold plaintiff the vehicle and accepted a note payable 12 months after date in part payment, had prevailed upon plaintiff's wife to surrender the vehicle to him four months after the sale, promising to make repairs free of charge. He refused to surrender the automobile at the request of plaintiff and his wife, and he bought the automobile himself at an auction for storage and repairs, which he held a year after its surrender to him. Defendant contended that the note was payable in monthly instalments, according to a stipulation written on the back of the note before it was signed. The trial Court, sitting without a jury, rendered a verdict in favor of defendant, and plaintiff appealed. The Court of Appeals, refusing to pass on the note's validity or to determine whether anything had been written thereon after it was signed, held that since defendant had recovered no judgment on the note, he had no valid lien on the automobile. It was further held that defendant had acquired no right to sell the automobile under Code (1939), Art. 63, § 41, providing that any corporation, firm or individual with whom a motor vehicle is left by its owner, or another person with the latter's consent, for repair or storage, shall have a lien thereon for all charges so incurred, and under Code (1947 Supp.), Art. 63, § 43, providing for the sale of the motor vehicle if the account is due and unpaid for 30 days. Neither plaintiff nor his wife had wanted the automobile stored, and defendant admitted at the trial that he had made no repairs. Consequently the trial court's judgment was reversed, and judgment was entered in favor of plaintiff for the automobile's fair market value at the time of conversion with interest. pp. 237-240
In criminal prosecutions one who takes or retains the property of another without the latter's consent for a debt which he in good faith claims to be due him by the owner of the property is not guilty of larceny, because the existence of the debt or the bona fide belief in its existence shows a lack of felonious intent in the taking or detention of the property. p. 240
The gist of a conversion is not the acquisition of the property by the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. Nor need there exist a forcible dispossession of property to constitute an act of the defendant a conversion. p. 240
A conversion may consist of a wrongful, tortious or unlawful taking of property from the possession of another by theft, trespass, duress or fraud and without his consent or approbation, either express or implied. p. 240
In an action for conversion of personal property, the measure of damages is the fair market value of the property at the time of conversion, with legal interest thereon up to the date of the verdict. p. 240
Decided April 19, 1950.
Appeal from the Circuit Court for Baltimore County (GONTRUM, J.).
Suit by John P. Saunders against A. Robey Mullinix, trading as the Daisy Garage Company, for the conversion of an automobile. The case was removed from the Circuit Court for Howard County to the Circuit Court for Baltimore County. From a judgment entered upon a verdict in favor of defendant, rendered by the Court sitting without a jury, plaintiff appeals.
Judgment reversed, and judgment entered in favor of plaintiff against defendant.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
John P. Saunders in proper person.
Submitted on brief by Jerome A. Loughran for the appellee.
This suit was instituted by John P. Saunders in the Circuit Court for Howard County against A. Robey Mullinix, trading as Daisy Garage Company, to recover for conversion of a Ford automobile. The case was removed to the Circuit Court for Baltimore County. That Court, sitting without a jury, rendered a verdict in favor of defendant. Plaintiff has appealed from the judgment entered upon the verdict.
It was shown at the trial that plaintiff bought the automobile from defendant on November 28, 1943, for $165. He also bought some gasoline and other supplies, which brought the total bill to $178.30. He paid thereon $75 in cash and gave a promissory note for $103.30 for the balance. This note, which was signed by himself and Sarah K. Saunders, his wife, was payable 12 months after date.
Plaintiff claimed that in March, 1944, he left home on a business trip, and while he was away defendant came to his home and obtained possession of his automobile by trick and artifice. He testified that defendant induced Mrs. Saunders to let him take the automobile by telling her that he wanted to make some repairs on the motor in compliance with a guarantee he had made.
Mrs. Saunders testified that defendant appeared at the front door of her home and stated that he had come for the automobile to repair it and would return it within a few days. She gave the following account of how the car was taken: "He said he had come over after the car to fix it up because * * * the motor missed and it just ate gas. He promised to fix it without charge. He had plenty of time to fix it, he said. I didn't know whether to let him have it or not. I finally did. I told him I had to go to Mount Airy for my groceries. He said I would have it by Friday. I let him take the car. It was sitting down in front of our house. He took the car and I never saw him or spoke to him until Friday afternoon. I called him and asked him if the car was ready. * * * He said the car was not ready. He found a broken valve in it. He never did bring it back."
Mrs. Saunders further testified that defendant asked her on April 15 to bring him the new license tags for the car, but she declined to do so. She said that he also wanted her to transfer the title to him so that he could sell the car. She said that defendant declared that he would not give the car back, but was planning to sell it.
It is not disputed that defendant held the automobile in his garage from March, 1944, until March, 1945, and on March 13, 1945, he sent plaintiff a registered letter notifying him that the automobile would be sold at auction on March 24, 1945, at 3 o'clock for "storage and repair bill." At the trial, however, he swore that he did not repair the car at all, but sold it only for storage. Defendant bought the car at the sale for the sum of $65, and later sold it for $78.
Even assuming the truth of defendant's testimony that he took the car on instructions of Mrs. Saunders, the fact remains that defendant kept the car contrary to the wishes of plaintiff and his wife. It is evident that he held it to protect his note. Defendant insisted that the note, although payable 12 months after date, was actually payable in monthly instalments. He maintained that the requirement that the note be paid in instalments was written on the note before it was signed. In any event, defendant had no valid lien on the car. He did not recover a judgment on his note. We do not consider it necessary on this appeal to pass upon the validity of the note, or to determine whether or not anything was written on it after it was signed.
Defendant sold the automobile under the Garage Lien Law. This statute provides that whenever a motor vehicle is left by the owner, or by any other person with his authority, express or implied, in the custody of any corporation, firm or individual for repair or storage, the person, firm or corporation in whose custody the motor vehicle is left shall have a lien on the motor vehicle for all charges so incurred, and may lawfully retain the same until the charges have been paid or until the lien is discharged. Code 1939, art. 63, sec. 41. The statute further provides that any corporation, firm or individual who may have a lien on any motor vehicle for repairs or storage may, if the account is due and unpaid for a period of 30 days and if the lienor still retains possession of the same, sell the motor vehicle at public sale, provided (1) that the time, place and terms of sale, together with a description of the motor vehicle, shall be inserted in one or more newspapers published in the city or county where the sale is to take place at least once each week for two successive weeks prior to the sale, and (2) that a registered notice shall be mailed at least 10 days prior to the sale to the owner of the motor vehicle. Code Supp. 1947, art. 63, sec. 43.
We think it is clear that defendant had no right to sell the automobile under the Garage Lien Law. Neither plaintiff nor his wife wanted the automobile stored in defendant's garage. They wanted to use the car, and defendant refused to give it up. Moreover, defendant admitted on the stand that he did not make any repairs to the automobile. It is a generally accepted rule in criminal prosecutions that one who either takes or retains the property of another without the latter's consent for a debt which he in good faith claims to be due him by the owner of the property is not guilty of larceny, because the existence of the debt or the bona fide belief in its existence shows a lack of felonious intent in the taking or detention of the property. But the gist of a conversion is not the acquisition of the property by the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled. Nor need there exist a forcible dispossession of property to constitute an act of the defendant a conversion. A conversion may consist of a wrongful, tortious or unlawful taking of property from the possession of another by theft, trespass, duress, or fraud and without his consent or approbation, either express or implied.
We, therefore, conclude that the judgment entered in favor of defendant should be reversed. In an action for conversion of personal property, the measure of damages is the fair market value of the property at the time of conversion, with legal interest thereon up to the date of the verdict. Swartz v. Gottlieb-Bauernschmidt-Straus Brewing Co., 109 Md. 393, 403, 71 A. 854, 16 Ann. Cas. 1156. We have decided to award plaintiff a judgment for the sum of $78, with interest at 6 per cent from March 26, 1944, the date of conversion.
Judgment reversed, and judgment entered in favor of plaintiff against defendant for $106.39, with interest from date, with costs.