BELFORD TRUCKING CO., INC., APPELLANT,
v.
JOHN RUDOLPH ZAGAR, APPELLEE

Fla. 4th DCA | 1970-12-30
No. 70-331
McCAIN, J„ and SACK, MARTIN, Associate Judge, concur.
243 So. 2d 646 Florida District Court of Appeal, Fourth District (1970) Negative Treatment
Cited by 102 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the evidence did not support an action for conversion because the money sought was not specific or identifiable, but rather represented an obligation to pay money arising from a contractual dispute.


Headnotes

[1] Conversion requires an act of dominion wrongfully asserted over another's property inconsistent with the owner's rights.

[2] Money is a proper subject of conversion when it is specific and identifiable, such as when delivered in a single mass or held under a special deposit.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Plaintiff sued defendant trucking company for conversion of $6,000. The parties had an agreement for trucking services where plaintiff drove a truck-t…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
CROSS, Chief Judge.

CROSS, Chief Judge.

Appellant-defendant, Belford Trucking Company, Inc., appeals a final judgment entered on a jury verdict in favor of ap-pellee-plaintiff, John Rudolph Zagar, in an action for conversion of $6,000 United States currency. We reverse.

Plaintiff, a truck driver, entered into an agreement whereby he was to drive a truck-tractor for defendant, a commercial carrier, and receive a percentage of the freight charges as compensation. The parties operated under the agreement for a number of months, during which time plaintiff made a down payment on the tractor, made monthly payments as agreed, and paid certain expenses for operation of the truck. Defendant trucking company received all the proceeds from the truck’s operation and charged to plaintiff’s account advances and expenditures for items properly chargeable to him under the terms of the agreement. The agreement was terminated when defendant’s accounts showed that plaintiff had overdrawn his account by receiving more advances and incurring more expenses than the share of profits he was entitled to receive.

Subsequently, plaintiff instituted this conversion action, alleging that defendant had wrongfully deprived or converted to its own use legal currency rightfully belonging to plaintiff. The jury returned a verdict for $6,000 in favor of plaintiff, rejecting defendant’s counterclaim for the overdrawn account. Judgment for the plaintiff was entered. This appeal followed.

*648The primary thrust of this appeal is whether the evidence supported an action for conversion.

The modern action of conversion arose out of the common law action of trover where lost goods had been found and converted to the finder’s own use. Pearl Assur. Co. v. National Ins. Agency, 1943, 150 Pa. Super. 265, 28 A.2d 334, reh., 151 Pa.Super. 146, 30 A.2d 333. Trover was expanded into other areas by the use of fictions to treat items as “lost” and “found.” W. Prosser, Torts 79 (1964). Today, conversion is defined as an act of dominion wrongfully asserted over another’s property inconsistent with his ownership of it. Goodrich v. Malowney, Fla. App.1963, 157 So.2d 829.

What constitutes “property” which may be the subject of conversion has been the subject of considerable discussion, especially where the property alleged to have been converted consists of money or intangibles.

There is nothing in the nature of money as personal property which makes it an improper subject of conversion so long as it consists of specific money capable of identification. Russell v. The Praetorians, 1947, 248 Ala. 576, 28 So.2d 786. To be a proper subject of conversion each coin or bill need not be earmarked, but there must be an obligation to keep intact or deliver the specific money in question, so that such money can be identified. Shahood v. Cavin, 1957, 154 Cal.App.2d 745, 316 P.2d 700. Money is capable of identification where it is delivered at one time, by one act and in one mass, or where the deposit is special and the identical money is to be kept for the party making the deposit, or where wrongful possession of such property is obtained. Hazelton v. Locke, 1908, 104 Me. 164, 71 A. 661. An example is where a specific sum of money is to be held in constructive trust until the occurrence of a specified event. Markel v. Transamerica Title Insurance Company, 1968, 103 Ariz. 353, 442 P.2d 97.

Accordingly, Florida courts have held money to be a proper subject of conversion where a sum of money sealed in an addressed envelope was misdelivered, (Southern Express Company v. Van Meter, 1880, 17 Fla. 783), and where a specified sum of money in a deposit bag was never credited to the depositor’s account (Armored Car Serv., Inc. v. First Nat. Bank of Miami, Fla.App.1959, 114 So.2d 431).

The requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally. Hull v. Freedman, Tex.Civ.App.1964, 383 S.W.2d 236. Therefore, where the parties have an open account, and the defendant is not required to pay the plaintiff identical moneys which he collected, there can be no action in tort for conversion. Garras v. Bekiares, 1946, 315 Mich. 141, 23 N.W.2d 239. A mere obligation to pay money may not be enforced by a conversion action. Dawkins v. National Liberty Life Insurance Co., D.C.S.C.1967, 263 F.Supp. 119; 89 C.J.S. Trover & Conversion § 23; and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied. Seekamp v. Small, 1951, 39 Wash.2d 578, 237 P.2d 489.

. Turning to the case at bar, it is readily apparent that the basis of the dispute is a determination of the rights and the obligations of the parties under the agreement.

Neither the pleadings nor the proof reveal the precise nature of the $6,000 in legal tender sought to be recovered. At first glance it appears that plaintiff sought to recover his share of the $6,422.92 conceded to have been received by defendant as freight charges on the tractor’s operation, but other portions of the record indicate that plaintiff sought recovery of $2,000 paid on the purchase price of the tractor and $4,000 expenses in the operation of the truck-tractor. Obviously, the money *649sought lacks the specificity required to make it a proper subject of conversion.

In essence, plaintiff sought not damages for conversion of a specific, identifiable, stated sum of United States currency, but to enforce an obligation to pay money.

Since the evidence does not support an action for conversion, we have searched the record to see if we could sustain the judgment on any other theory consistent with the pleadings and proof. However, we have been unable to find support for the judgment on any theory for recovery in the record before us.

Accordingly, the judgment is reversed and the cause remanded with directions to enter a judgment for the defendant on the plaintiff’s second amended complaint.

Reversed and remanded, with directions.

McCAIN, J„ and SACK, MARTIN, Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (64 total)

  • Murray Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986)
    …bject of conversion or theft allowing for the assessment of treble damages. Capital Bank v. G & J Investments Corporation, 468 So. 2d 534 (Fla. 3d DCA 1985); Plotch v. Gregory, 463 So. 2d 432 (Fla. 4th DCA 1985); Belford Trucking Co., Inc. v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1971); Advanced Surgical Technologies, Inc. v. Automated Industries, Inc., 777 F. 2d 1504 (11th Cir.1985). Neither the statute nor case law construing the statute provide for the assessment of treble damages for compensatory damages ar…
    1 / 2
  • Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA 1987)
    …ognized that “[t]o be a proper subject of conversion each coin or bill need not be earmarked, but there must be an obligation to keep intact or deliver the specific money in question, so that such money can be identified.” Belford Trucking v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1970) (citing Shahood v. Cavin, 164 Cal.App.2d 745, 316 P. 2d 700 (1957)). Money is said to be capable of identification [*321] where it is delivered “at one time, by one act and in one mass, or where the deposit is special and the ide…
  • Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. 3d DCA 2008)
    …r money to be the object of conversion “there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified.” Futch v. Head, 511 So. 2d 314, 320 (Fla. 1st DCA 1987)(quoting Belford Trucking v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1970)). Here, the parties did not contemplate that International Trading would keep the $300,000 in a separate account, nor was International Trading obligated to hold the funds that it received from Vítala, S.A. in a trust or escrow…

Previewing 3 of 64 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw