Opinion
July 29, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 356
Balaban & Lutz, Harlan G. Balaban, John A. Lobus, Denver, for plaintiff-appellee.
Tinsley, Frantz, Fleming & Davidson, P.C., Mansur Tinsley, Lakewood, for defendant-appellant.
VanCISE, Judge.
Sancetta appeals from a judgment for Mrs. Worley for breach of contract and for conversion. We affirm in part and modify and reverse in other particulars.
Viewed most favorably to Mrs. Worley, the prevailing party below, See North Eastern Motor Freight, Inc. v. Public Utilities Commission, 178 Colo. 433, 498 P.2d 923, the testimony established that on May 30, 1972, the parties orally agreed that Mrs. Worley would sell to Sancetta the coin-operated equipment in place at a location in Arvada, for a price equal to her original cost less the amount of indebtedness outstanding, which indebtedness he would assume. This equipment, of which Sancetta took control, included the four items for which judgment was entered on the contract claim, these being a billiard table, a juke box, a consolette, and a number of phonograph records. These items originally cost Mrs. Worley at least $2,479. At the same location, Sancetta also assumed control of a cigarette machine belonging to her.
For enforceability of this agreement under the Uniform Commercial Code, See s 4--2--201(3)(c), C.R.S.1973.
On July 25, 1972, the parties made an arrangement concerning a twin rifle arcade game (twin rifle) and other equipment at a location in Idaho Springs. Shortly thereafter, permission to operate at that location was revoked and, except for the twin rifle which he retained, Sancetta returned all of the equipment from there to Mrs. Worley's creditors for credit to her account.
In August 1972, Mrs. Worley requested payment. However, Sancetta paid nothing to her, nor has he made any payments to her creditors on her indebtedness against the six items listed above. Mrs. Worley, therefore, commenced this action for breach of contract and asked for judgment in the amount of the agreed price for all six items, plus others with which we are not here concerned. Sancetta defended on the basis that there were no enforceable contracts, and he counterclaimed for an amount owing him for certain repair services performed for Mrs. Worley.
At the conclusion of her evidence, Mrs. Worley was allowed to amend her complaint to add a claim for conversion of the twin rifle and of another billiard table. As to that conversion claimed, Sancetta maintained that he was holding all of the items until Mrs. Worley paid him the amount owed for the repair services he had performed.
The court found that Sancetta had breached the May 30 contract with Worley for purchase of the equipment, and entered judgment on the contract claim for the $2,479 original cost of the billiard table, juke box, consolette, and phonograph records. The court also found that on July 25 Sancetta had converted the twin rifle and the cigarette machine, and it awarded $1,295 and $355, respectively, this being the original cost for these items. It entered judgment on the counterclaim for Sancetta for $540.66, the full amount asked by him. Sancetta appeals from the contract and conversion judgments.
Sancetta's contention that there was no contract is not sustainable. The evidence summarized above supports the court's findings to the contrary. The award of the amount of Mrs. Worley's original cost of the four items included in the contract judgment was therefore proper. See United Press International, Inc. v. Sentinel Publishing Co., 166 Colo. 47, 441 P.2d 316.
However, the evidence does not support the finding of a conversion of the cigarette machine, which was not even included in the conversion claim. It was included in the items acquired by Sancetta when he took over the Arvada location. By the May 30 agreement, he had bought the cigarette machine, and as with the other four items, owed Mrs. Worley the agreed purchase price for it. A breach of contract will not support an action for conversion. Byron v. York Investment Co., 133 Colo. 418, 296 P.2d 742.
Although the cigarette machine was not 'converted,' this machine was also included in the contract claim. There is no dispute in the evidence as to this item being at the Arvada location taken over by Sancetta, and, once the court found that the parties had entered into a valid contract on May 30 for the sale and purchase of the equipment thereon, the cost of this item should have been included in the amount of the judgment for breach of contract.
The evidence determines the appropriate relief to be granted, Apex Investments, Inc. v. Peoples Bank, 163 Colo. 325, 430 P.2d 613, and the theory of the action is not significant. Continental Sales Corp. v. Stookesberry, 170 Colo. 16, 459 P.2d 566. 'If a party states any claim and proves it by a preponderance of the evidence, he is entitled to relief.' Continental Sales Corp. v. Stookesberry, supra; Spomer v. City of Grand Junction, 144 Colo. 207, 355 P.2d 960; Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051; See Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594. Therefore, although the reasoning was erroneous, the $355 judgment for the cigarette machine, and therefore the result, was correct. See Metropolitan Industrial Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944; Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115. See also Kalish v. Brice, 136 Colo. 179, 315 P.2d 829.
The evidence also does not support the finding of a conversion of the twin rifle. It was included in the items acquired by Sancetta when, by arrangement with Mrs. Worley, he took over the Idaho Springs location on July 25, and, therefore, at the inception he had a right to its possession. Under these circumstances, a demand for the return of the property and a refusal to comply therewith were prerequisites to Mrs. Worley's right to recover under a conversion theory, McCartney v. Foster, 150 Colo. 537, 374 P.2d 704; Davis v. American National Bank, 149 Colo. 34, 367 P.2d 325, and there was insufficient evidence of any demand. Also, Mrs. Worley failed to establish the value of the twin rifle as of the date of the alleged conversion, the only evidence of value being her original cost which admittedly was unrelated to the depreciated condition of the machine. Byron v. York Investment Co., supra; see Gates Factory Store v. Coleman, 142 Colo. 246, 350 P.2d 559.
By finding there was a conversion, the trial court impliedly negated the existence of any July 25 contract for the purchase and sale of the twin rifle, and Mrs. Worley in her brief also maintains that the twin rifle was not part of a sales agreement. Therefore, there being no contract and no conversion, we must reduce the amount of the judgment by the $1,295 allocated to the twin rifle. However, Sancetta admitted, at the time of trial, that he had the twin rifle in his possession and was not claiming it as belonging to him. Under those circumstances, this item should be returned to Mrs. Worley or, if it is no longer in his possession, Sancetta should reimburse her for its value as of the date when his possession terminated.
In view of our ruling on the conversion issue, we need not consider Sancetta's claim of error in the exclusion of documentary evidence allegedly negating any such conversion. Although Sancetta in his motion for new trial also claimed error in entry of judgment for the full purchase price of the equipment without regard to unpaid balances owing thereon, that issue was not presented or argued in his brief and was therefore abandoned. Edwards v. Quackenbush, 112 Colo. 337, 149 P.2d 809.
The court awarded interest on the contract judgment from May 30, 1972. However, since Mrs. Worley asked for interest only from the date of filing the complaint, she is entitled to interest only from that date, September 4, 1973. See Adler v. Adler, 167 Colo. 145, 445 P.2d 906; Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067.
That part of the judgment entered on the claim for breach of contract is modified and cause remanded with directions to enter judgment for plaintiff for $2,834 together with interest thereon from September 4, 1973. That part of the judgment entered on the claim for conversion is reversed. The trial court is directed to order the defendant to return the twin rifle arcade game to the plaintiff forthwith, or, if it is no longer in his possession, to enter judgment for plaintiff in the amount of the value thereof as of the date when his possession terminated. All other parts of the judgment are affirmed.
Judgment modified in part, affirmed in part, reversed in part, and remanded with directions.
RULAND and STERNBERG, JJ., concur.