Opinion
Feb. 3, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 56
Brenman, Ciancio, Rossman & Baum, Melvin Rossman, Denver, for plaintiff in error.
Ireland, Stapleton, Pryor & Holmes, Wilbur M. Pryor, Jr., William C. Jensen, Denver, for defendants in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error, herein called plaintiff, sued Merchants Oil Inc., herein called Merchants; Merchants' president, George Caulkins, herein called Caulkins, and Phillips Petroleum, for damages for an alleged conversion of goods of the plaintiff. Prior to trial Phillips Petroleum was dismissed from the case and is not a party here. Trial was to the court and on the completion of plaintiff's testimony the trial court granted defendants' motion to dismiss the complaint.
The pertinent facts and procedures are these:
After discussions with the president of Merchants, plaintiff became the operator of a filling station owned by Merchants, at which Phillips Petroleum products were sold. As a condition of his operating agreement, plaintiff was required to purchase the inventory of merchandise and equipment from his predecessor and was advised that when plaintiff terminated, his successor similarly would have to buy his inventory and equipment. The record fails to disclose any obligation of Merchants to buy the equipment or repurchase any merchandise from plaintiff if no successor was obtained. Apparently this eventuality was not discussed. Plaintiff paid Merchants a specified charge for each gallon of gas he sold for the operation of the station plus minor rental on two pieces of equipment which belonged to Merchants. Either party could terminate the operation at any time with or without cause.
Plaintiff operated the station for just over three years and then terminated his operation, having taken over the operation of a Texaco station. Approximately two weeks before termination plaintiff notified Merchants of his intent to terminate and on July 12 he wrote a letter to Merchants stating that the station would be closed on July 16 and demanding that Merchants buy back the inventory and equipment. Merchants did not reply to the letter and on the afternoon of July 15 assumed control of the station, changed the locks and requested that plaintiff come to the station on July 16 to take an inventory of the equipment and merchandise. When plaintiff refused to participate in the inventory, Merchants notified him that unless he joined in the taking of an inventory, the merchandise would be transferred to Murph's Express for storage on July 17. As the plaintiff persisted in his refusal to participate in an inventory, the goods were transferred to storage and remained there at least until the time of trial. Plaintiff testified that he had never gone to look at the merchandise and equipment and also testified that he had paid the storage bill from the time the goods were originally transferred to storage.
Plaintiff alleged in his complaint that the acts of Merchants in changing the locks on the station, maintaining possession of his inventory and equipment, and transferring them to storage constituted a conversion. Defendants denied his allegations. However, immediately prior to trial, Merchants stipulated that it owed plaintiff four hundred ninety dollars and seventy-six cents ($490.76) stating '--this represents gasoline of the plaintiff's which was used by the defendant, plus other debits and credits--' on termination.
At the trial the only two witnesses were plaintiff and Caulkins, both of whom testified about their original negotiations and the activities at the time the plaintiff terminated his operation of the station. Plaintiff attempted to testify as to the value of the equipment and inventory by referring to a document (Exhibit H) on which he had listed his equipment and its cost and value at the time he ceased to operate the station. Upon cross examination, he admitted that the cost figures on this document were guesses and that his valuation of the worth of the goods in their used condition at the time of termination were also merely his estimates or guesses. Defendant objected to the introduction of this document and the objection was sustained. Defendant also moved to strike all testimony of plaintiff as to the terms of the alleged contract between plaintiff and Merchants concerning Merchants' purported obligation to buy back the inventory and equipment. This motion was granted.
Upon completion of plaintiff's case, Merchants moved to dismiss. At that time plaintiff moved to amend the complaint to include an action for breach of contract in addition to the action for conversion. This motion was denied by the trial court. The court then granted the motion of defendants to dismiss on the ground that there had been no conversion established, even though Merchants had stipulated that it owed plaintiff approximately $500 for his gasoline that Merchants used.
Plaintiff asserts as error the finding of the court that there was no conversion, the striking of the testimony relative to a contract, the refusal to admit the testimony relative to value, and the refusal to permit plaintiff to amend the pleadings to allege a contract breach as well as a conversion.
A careful reading of the record discloses that even if the testimony of plaintiff relative to the contract had not been stricken, there was no evidence which established any obligation on the part of Merchants to purchase the inventory and equipment. The testimony disclosed no breach of contract by Merchants. Therefore the striking of the testimony relative to the contract and the refusal of the trial court to permit an amendment of the pleadings did not constitute error.
Except as to the gasoline used by Merchants, plaintiff failed to prove a conversion of his property. Neither Merchants nor Caulkins ever claimed any right of ownership or right of possession. They exercised no act of ownership or dominion over the property which was in any way inconsistent with plaintiff's right or title. There was, therefore, no conversion. Sigel-Campion Live Stock Commission Co. v. Holly, 44 Colo. 580, 101 P. 68. Further, 'a mere temporary exclusion of plaintiff from possession of his property will not give rise to an action for conversion.' Byron v. York, 133 Colo. 418, 425, 296 P.2d 742, 745. Plaintiff was at liberty to remove the property from the station (or storage) at any time. His failure to do so does not create a conversion. The foregoing renders moot the trial court's ruling on the admissibility of Exhibit H.
However, we find that the trial court did err in failing to find that Merchants converted the gasoline belonging to plaintiff. Prior to trial Merchants stipulated that it owed four hundred ninety dollars and seventy-six cents ($490.76) to plaintiff for his gasoline used by Merchants, 'plus other debits and credits.' At the conclusion of plaintiff's case the following colloquy took place: 'THE COURT: Haven't you stipulated that there was a conversion with respect to the gasoline that was used by Merchants Oil after it had taken possession? MR. JENSEN: (Merchants' attorney) That is correct.' In view of the stipulation and admission, plaintiff was entitled to judgment in the amount stipulated to be due him.
The rule in Colorado is, '--that one whose property is converted is entitled, as part of his damages, to interest at the legal rate from the time of conversion--.' Montgomery v. Tufford, 165 Colo. 18, 437 P.2d 36. Here, however, plaintiff only asked for interest from the filing of the complaint and will be so limited.
The judgment is reversed with directions to enter judgment in favor of plaintiff against Merchants Oil, Inc. for four hundred ninety dollars and seventy-six cents ($490.76), together with interest at the legal rate from the date of filing the complaint as prayed for in the complaint, each party to pay his or its own costs.
COYTE and PIERCE, JJ., concur.