My view of this case is as follows:
Four men came to the home of plaintiff, No. 3032 Dickson street in Butte, on April 17, 1943, and removed from plaintiff's premises a Dodge sedan automobile theretofore purchased by him from defendant on a conditional sale contract. As the ignition and motor were locked, the car could not be moved on its own power so a wrecker was used to raise the rear end and tow it away. The automobile was taken without the knowledge or consent of the plaintiff who was asleep at the time. When the plaintiff discovered the car was gone he reported his loss to the police department of the city of Butte and thereafter learned that the defendant had sent the men and wrecker for the car and that they had towed it to defendant's warehouse where it was detained by defendant.
Following the taking defendant wrote plaintiff a letter wherein was stated: "If you will promptly come to our office and pay the amount necessary to bring your payments under the contract up to date we will redeliver the automobile to you."
Plaintiff claims that at the time of the taking he owed no past due installments; that all matured installments had been paid and that in addition he was then entitled to a further credit of $61.38 on future due installments.
Two days after the taking plaintiff commenced this suit against defendant for the conversion of the automobile.
The defense was that plaintiff had defaulted in three installment payments and that such defaults entitled defendant to repossess the automobile.
Plaintiff denied that he was in default and charged that defendant had refused to comply with its oral agreement to credit plaintiff with the amount of a certain repair bill. Plaintiff also challenged the right of defendant to take the car without plaintiff's knowledge or consent; against his will and in a manner not authorized by statute. *Page 280
Plaintiff delivered to defendant and the latter accepted title and possession of a 1936 model Dodge automobile owned by plaintiff as the down payment of more than one-third of the agreed purchase price and thereupon defendant delivered to plaintiff the car in controversy, a 1941 Dodge sedan, and plaintiff agreed to pay the balance of the purchase price in monthly installments of $40 each, the first of which was to become due on December 21, 1942. A partly printed and partly typed conditional contract of sale was signed on November 21, 1942, evidencing the sale agreement.
Before the first installment payment became due plaintiff discovered that the motor in the sedan was so worn and mechanically defective that it could not be operated unless necessary repairs were made. These facts were communicated to defendant and on December 20, 1942, plaintiff requested defendant "to repair the car and put it in shape."
Plaintiff testified that defendant said to him: "Go ahead, we got no mechanic here; take it to a garage and have it fixed and we will make it good. * * * We will take it off your payments."
Plaintiff testified that he thereupon paid the first installment payment of $40 due December 21, 1942, and six days later took the automobile to the Dodge agency in Butte where the necessary repair work was done at a cost to him of $181.38; that he then presented the bill for such repair work to defendant for the promised credit and that defendant refused to give or allow same or any part thereof.
Plaintiff testified that he personally presented the repair bill to the president of the defendant company and that "he said: `We are busy now, you are not in a rush for it are you?' I said, `No, I am not in a rush but this has to be paid'. He said `come around some other time when we are not so busy', and I said `all right' and I stuck the bill in my pocket and went home."
Thereafter and about February first defendant's president asked plaintiff for the January installment payment whereupon, according to plaintiff's testimony, the latter handed the $181.38 *Page 281 repair bill to the president, saying: "`what you think, I am going to give you money on top of this? I want you to give me a receipt for this', I said, `like you told me, take off of the payments'." Whereupon the president left with the statement, "I will see Mr. Russell about it", Mr. Russell being defendant's sales manager.
Plaintiff further testified: "He came back about a month from then again and said, `You got any money for me?' I said, `What kind of money you mean? Why don't you take this off the payment like you people promised me?' He said, `We can't pay no repair bill, we are going to take that car', and I said `You are not going to take that car', and he said, `We will if we have to steal it', and he went out and I never seen him no more."
While the conditional sale contract provided that the 1941 Dodge sedan was to be delivered to plaintiff "without warranty except as to title" and that the purchaser "shall keep the same in good repair at his own expense" yet such provisions were for the sole benefit of the seller who was and is privileged to thereafter agree to either waive or modify such provisions. There is nothing in either the contract or the law to prohibit such waiver or modification. In Inter-State Lumber Co. v. Western Mortgage Warranty Title Co., 51 Mont. 190, 149 P. 975, 976, this court considered the effect of an oral agreement made subsequent to a written contract and said: "But, assuming the clause referred to does cover materials and is to be read into the contract, that would not prevent what the evidence tends to establish, viz., the abrogation of this clause by subsequent oral agreement of the parties, or its waiver, without writing, by the party for whose protection it was intended." (Citing cases.) In Roberts v. Sinnott, 55 Mont. 369, 177 P. 252, the original written contract was supplemented by oral agreement and this court said: "The provision of the contract above was manifestly intended for the protection and benefit of the owner, and no reason can be suggested why it might not be waived." *Page 282
"`By the general rules of the common law, if there be a contract not within the Statute of Frauds which has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement.' * * * `Whenever two men contract, no limitation self-imposed can destroy their power to contract again.'" 2 Williston on Contracts, Rev. Ed., Sec. 591, pp. 1702, 1703.
In Kester v. Nelson, 92 Mont. 69, 10 P.2d 379, 380, this court said:
"The right of the parties to an executory contract to terminate it by mutual consent exists independently of any agreement permitting them so to do; and it is immaterial whether such termination be characterized an abandonment, mutual rescission, modification, or waiver. The effect is the same, to discharge the parties from obligations previously assumed. * * *
"There can be no question but what a contract may be mutually abandoned or modified by the parties at any stage of performance, and each of the parties released from further obligation on account thereof; that it may be accomplished by parol, and the fact of its having been done established by evidence of the acts and declarations of the parties. (Citing cases.)
"The modification of the contract of sale * * * was established by the testimony of witnesses as to the oral statements and declarations made by the parties in their lifetime in the presence of witnesses; and while such testimony is not the most satisfactory, yet by reason of necessity it is admissible. (Citing cases.)
"The evidence presented a question of fact for the jury to decide as to whether the contract of sale was modified or rescinded under proper instructions as to the law." *Page 283
In 6 Williston on Contracts, Rev. Ed., Sec. 1828, p. 5178, it is said: "A contract in writing, but not required to be so by the Statute of Frauds, may be dissolved or varied by a new oral contract, which may or may not adopt as part of its terms some or all of the provisions of the original written contract." See also, Klein Norton Co. v. Cohen, 107 Cal. App. 325, 290 P. 613; Lacy Mfg. Co. v. Gold Crown Mining Co., 52 Cal. App. 2d 568,126 P.2d 644; Pearsall v. Henry, 153 Cal. 314, 95 P. 154,159.
The plaintiff testified that subsequent to the signing of the written conditional sale contract and before there was any breach thereof defendant made the oral agreement pursuant to which plaintiff caused the work repair to be done on the car, the cost of which defendant agreed to credit on the installment payments to become due; that plaintiff fully performed the contract and that he remained in continuous possession of the automobile after the due dates of the January, February and March installments without being declared in default by defendant.
Whether the parties had made such a contract was a question of fact for the determination of the jury. The jury saw all the witnesses and heard them testify in the case. The jury accepted the testimony of plaintiff's witnesses and it rejected the testimony of the defendant's witnesses on that issue. By the verdict it was established that such oral contract had been entered into by the parties.
It was competent for the plaintiff to testify as to the terms of such subsequent contract. In Lowenstern Bros., Inc., v. Marks Credit Clothing, Inc., 319 Ill. App. 71, 48 N.E.2d 729, 733, it was held that the written order of the defendant could be modified by the subsequent oral agreement between the parties. In its opinion the court said: "Of course there can be no question that evidence of modification after the execution of the contract is admissible testimony. It does not appear, from any thing that the defendant has cited as authority, why the conversation *Page 284 of the parties as to the subsequent modification of the contract was not admissible as evidence."
In Griffith v. Cedar Creek Oil Gas Co., 91 Mont. 553, 559,8 P.2d 1071, 1073, this court said: "Under the terms of the contract the lease would have expired on September 15, 1927, on the failure of the defendant to make the payment required by the contract. However, before a default was suffered, at the solicitation of the defendant, the plaintiffs agreed to extend their time of payment for an indefinite period. This oral agreement was `executed' in that defendant remained in possession and exercised dominion and control over the property after the date on which, under the written lease, its rights would have ipso facto terminated, and this with the consent of the plaintiffs. Consequently the written contract was modified by an executed oral agreement."
In Webber v. Killorn et al, 66 Mont. 130, 212 P. 852, 853, this court said: "Our Code specifically provides that a written agreement may be modified by an executed oral agreement (Sec. 7569, Revised Codes 1921), in which case the evidence of the act of executing the oral modification is deemed of sufficient strength and reliability to take rank with the writing itself, and the writing ceases to be the only evidence of the engagement of the parties. Hence parol evidence of such executed oral modifications of a written contract is admitted. For a like reason, where the parties first execute a portion of their engagement and then commit the remainder to writing it is proper to admit parol evidence of the part which has been executed.
"If the testimony produced on behalf of the defendants, and objected to by the plaintiff, is true, defendants paid the $90 and Bartells surrendered the possession of the buildings to them as owners prior to the signing of the contract and they have been in lawful possession as owners ever since. This part of the deal became executed, and, being a part of the inducement for making the written contract to purchase the land, the writing is not the only competent evidence of the engagement of *Page 285 the parties. The defendants were not relying alone on proof of what was said in seeking to establish their claim. The evidence objected to is of matters more substantial in character, namely, what was done.
"The trial court did not err in permitting the executed portion of the transaction not contained in the writing to be established by parol."
In Franklin v. Spratt, 174 Ark. 268, 295 S.W. 26, a dispute arose concerning the amount of installment payments set forth in a conditional sale contract covering an automobile, the purchaser contending that by an agreement made subsequent to the original contract the seller had agreed to accept $35 monthly instead of $45 called for by the original contract. The purchaser left the car with the seller for repairs but the latter thereafter refused to return same to the purchaser unless he would pay the repair bill and the entire balance of the purchase price. This detention of the car by the seller was held to be an unlawful conversion.
In Voltz v. General Motors Acceptance Corporation, 332 Pa. 141, 2 A.2d 697, 699, the purchaser of an automobile sold under an installment contract placed the car in his garage for the night leaving the garage door open about three feet. Without the knowledge or consent of the purchaser, two men in the employ of the defendant finance company came to the purchaser's home about 2:30 a.m. and repossessed the car by pushing the car from the garage to the street before they started the engine. Thereupon the purchaser brought an action in replevin against the finance company to secure possession of the car and the jury returned a verdict for plaintiff for the value of the car, for detention damages and for $2,500 as punitive damages. The trial court characterized the conduct of the defendant and its agents as "outrageous and highhanded." The supreme court thought "punitive damages in the sum of one thousand dollars sufficiently punishes the defendant for its unlawful act", reduced the judgment by $1,500 and affirmed the judgment on verdict as so modified. *Page 286
Defendant had been told by plaintiff that he would not permit defendant to take the car. Under such circumstances defendant should not have taken the law in its own hands and sent a force of men to plaintiff's home to repossess the property. This force outnumbered plaintiff four to one but since plaintiff was in his bed and asleep when the men arrived the locked car was taken from plaintiff's premises without awakening plaintiff or starting a fight.
Upon plaintiff's refusal to surrender possession, then defendant was left to his remedies under the statute, Sec. 7597, Revised Codes as amended, for "the right of the vendor to re-enter into possession depends, not on contract, but on law." Uhl v. Wexford Co., 268 Mich. 473, 256 N.W. 488, 489. "Mere title to and right to possession of personal property on the premises of another is not a defense for entering and taking it." Berns v. P.A. Starck Piano Co., Mo. App., 296 S.W. 239, 242. See also, Mitchell v. Automobile Sales Co., 161 Tenn. 1, 28 S.W.2d 51, 83 A.L.R. 955.
In McClellan v. Gaston, 18 Wash. 472, 51 P. 1062, 1063, the court said: "Because a party to a contract violates his contract, and refuses to do what he agreed to do, is no reason why the other party to the contract should compel the performance of the contract by force. The adoption of such a rule would lead to a breach of the peace, and it is never the policy of the law to encourage a breach of the peace. The right to an enforcement of this part of the contract must, in the absence of a consent on the part of the mortgagor, be enforced by due process of law, the same as any other contract."
In Roberts v. Speck, 169 Wash. 613, 14 P.2d 33, 34, the court said: "The reason for the rule requiring a person to resort to process of law in undertaking to acquire possession of property to which he is entitled by virtue of a contract with the person in possession, when such party refuses to peaceably surrender it, is the same whether the possession be acquired by virtue of the terms of a chattel mortgage or a conditional bill of sale. The law does not encourage people to resort to a breach *Page 287 of the peace, nor does it encourage officers of the law to deprive any person of the possession of property, when such officers are without legal process."
Generally speaking, any appropriation of property without the concent of the owner constitutes conversion.
"Conversion, as a tort, consists either in the appropriation of the personal property of another to the party's own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner's." Prudential Insurance Co. v. Thatcher, 1936, 104 Ind. App. 14, 20,4 N.E.2d 574, 577; Fagan v. Babacz, 1936, 102 Ind. App. 558,1 N.E.2d 299.
In my opinion there is ample evidence in the record to justify the jury's verdict and to show that defendant had wrongfully exercised dominion and control over the automobile in exclusion of and in defiance of the rights of plaintiff as possessor thereof. Sullivan O'Brien, Inc., v. Kennedy, 107 Ind. App. 457,25 N.E.2d 267; Commercial Credit Co. v. Spence, 185 Miss. 293,184 So. 439.