ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT W. MCNEVIN, JR. SIDNEY M. MISHKIN
Indianapolis, Indiana LESA C. FALL
Mishkin & Fall
COURT OF APPEALS OF INDIANA
SHELBY ENGINEERING CO., INC., )
vs. ) No. 49A02-9804-CV-387
ACTION STEEL SUPPLY, INC., )
APPEAL FROM THE MARION SUPERIOR COURT NO. 13
The Honorable David A. Shaheed, Magistrate
Cause No. 49D13-9705-CP-0783
March 26, 1999
OPINION - FOR PUBLICATION
Due to the fraudulent conduct of one of its tenants, Shelby Engineering Co., Inc.
received money belonging to Action Steel Supply, Inc. When Shelby Engineering refused
to return the money, Action Steel filed suit against Shelby Engineering as well as the tenant.
The case proceeded to a bench trial after which the trial court entered judgment in Action
Steel's favor. Shelby Engineering now appeals raising numerous allegations of error which
we consolidate and rephrase as: (1) was the evidence sufficient to sustain the judgment, and
(2) did the amount of the judgment represent double recovery.
We affirm.See footnote
The record shows that in the fall of 1996 Action Steel was in the market for an
overhead crane when it discovered one for sale in a building occupied by Thomas Melvin.
Shelby Engineering owned the building but was leasing it to Melvin who was doing business
as Speedway Pallet. Shelby Engineering also owned the crane and had agreed to pay Melvin
a $500.00 commission if he succeeded in selling it. Giving the impression that it was he who
owned the crane, Melvin entered negotiations with Action Steel for the crane's purchase. The
parties entered a written agreement that provided for a $25,000.00 purchase price with a
$14,000.00 down payment. Melvin received the down payment, deposited it into his own
checking account, and purchased a cashier's check for $8,000.00. The check was made
payable to Shelby Engineering. He then presented the check to George Hilgemeier, the
president of Shelby Engineering, indicating that it represented a down payment from a buyer
who was purchasing the crane. Melvin told Hilgemeier that the purchase price was
$24,000.00. When asked the name of the buyer, Melvin did not respond. Hilgemeier
informed Melvin that he wanted a written agreement from the party wishing to buy the crane
along with proof of the buyer's insurance. When three weeks had passed and Melvin still had
not provided the written agreement or the name of the buyer, Hilgemeier wrote a letter to
Melvin indicating the crane was no longer for sale. The letter again requested the name of
the buyer so that the $8,000.00 could be refunded. In response Melvin produced a fictitious
bill of sale that included the name of a fictitious buyer along with a fictitious address. When
Shelby Engineering was unable to contact the fictitious person it eventually concluded that
no such person existed. Thereafter, Action Steel discovered that Shelby Engineering was the
true owner of the crane. Hilgemeier and a representative of Action Steel then tried to
negotiate a deal but could not reach an agreement. During the failed negotiations Hilgemeier
acknowledged that the $8,000.00 belonged to Action Steel. However even after a demand,
Shelby Engineering refused to return the money. Action Steel then filed suit against Shelby
Engineering on various theories of liability including unjust enrichment and money had and
received. Shelby Engineering also sued Thomas Melvin on various theories of liability
including fraud and conversion. After a bench trial the trial court entered judgment in favor
of Action Steel and against Melvin in the amount $42,000.00, along with interest and
attorney fees, and entered judgment in favor of Action Steel and against Shelby Engineering
in the amount of $8,000.00. Shelby Engineering now appeals.
Shelby Engineering contends the trial court erred in entering judgment against it
because "[there is no legal or equitable theory of law that would entitle Action [Steel] to a
judgment in its favor . . . .]" Brief of Appellant at 13. Shelby Engineering is mistaken. We
first note that neither party requested special findings of fact and the trial court did not
gratuitously enter such findings. Thus, we review the decision of the trial court under the
general judgment standard. Klebes v. Forest Lake Corp., 607 N.E.2d 978, 982 (Ind. Ct. App.
1993), trans. denied. A general judgment will be affirmed if it can be sustained upon any
legal theory consistent with the evidence. Bedford Recycling, Inc. v. U.S. Granules Corp.,
634 N.E.2d 1361, 1363 (Ind. Ct. App. 1994), trans. denied. In making this determination we
neither reweigh the evidence nor judge the credibility of witnesses; rather, we consider only
the evidence most favorable to the judgment together with all reasonable inferences to be
drawn therefrom. Klebes, 607 N.E.2d at 982.
One of the theories upon which Action Steel proceeded against Shelby Engineering
was money had and received. We have noted:
An action for money had and received is an equitable remedy that lies in favor
of one person against another, when that other person has received money
either from the plaintiff himself or third persons, under such circumstances
that in equity and good conscience he ought not to retain the same, and which
money, ex aequo et bono, belongs to the plaintiff, and where money has been
received by mistake of facts, or without consideration, or upon a consideration
that has failed, it may be recovered back. Such an action rests upon an implied
promise and may be maintained against the person who received money from
the plaintiff under circumstances which in equity and good conscience he
should not retain.
Chosnek v. Rolley, 688 N.E.2d 202, 211 (Ind. Ct. App. 1997) (quoting Pufahl v. National
Bank of Logansport, 129 Ind. App. 191, 195, 154 N.E.2d 119, 120-21 (1958)) (emphasis in
original). Shelby Steel acknowledges the theory of money had and received but argues it
does not apply to an innocent third party who received the cash in the due course of business,
or where a transaction is based on an express contract.
In support of the proposition that it received the money in the due course of business
Shelby directs our attention to Ohio Casualty Ins. Co. v. Smith, 297 F.2d 265 (7th Cir. 1962).
In Ohio Casualty, the court held that a bonding company could not recover a judgment
against persons who sold merchandise to a bank employee using embezzled funds to
purchase the merchandise. Id. at 267. Defendant sold the merchandise to the embezzler in
the due course of business without knowledge of the funds' origins. Id. The present case is
distinguishable from Ohio Casualty for two reasons. First, Shelby Engineering was not
selling the merchandise in the due course of business. Rather Shelby Engineering was
attempting to find a buyer for an item of equipment it no longer desired. Second, the
evidence shows that Shelby Engineering eventually discovered the source of the funds and
after Shelby Engineering could not negotiate a deal with Action Steel for the purchase of the
crane, it still refused to return the money. Shelby Engineering was in no way an innocent
As for Shelby Engineering's claim that the transaction in this case is based on an
express contract, we disagree. There is no question that the existence of an express contract
precludes recovery on the equitable theory of money had and received. Huff v. Biomet, Inc.,
654 N.E.2d 830, 837 (Ind. Ct. App. 1995). In this case however there was no contract
between Shelby Engineering and Action Steel. Rather, the contract existed between Shelby
Engineering and Melvin. Although Melvin may not have been able to pursue against Shelby
Engineering the equitable remedy of money had and received, there is no such prohibition
pertaining to Action Steel.II.
In this case the record is clear that Shelby Engineering received from a third person
money belonging to Action Steel. The money was provided for the purchase of Shelby
Engineering's crane. Shelby Engineering acknowledged the money belonged to Action Steel
but refused to return the money even after the parties could not reach agreement on the crane.
The consideration failed and under the circumstances in equity and good conscious Shelby
Engineering should not retain the money. The evidence in this case supports the trial courts
judgment. We find no error on this issue.
Shelby Engineering next complains the trial court allowed Action Steel to obtain a
double recovery. Shelby Engineering's logic is based on the following. Action Steel sued
Melvin on various theories of liability including fraud and conversion and sought treble
damages pursuant to Ind. Code § 34-4-30-1. Action Steel's actual losses totaled $14,000.00,
the amount it paid Melvin as down payment for the crane. The trial court entered judgment
in Action Steel's favor for $42,000.00 representing treble damages along with attorney fees
in the amount of $4,189.80. According to Shelby Engineering the trial court's judgment
amounts to double recovery because the $8,000.00 judgment awarded to Action Steel on its
complaint against Shelby Engineering was included in the $42,000.00 judgment awarded to
Action Steel on its complaint against Melvin.
This court has previously considered and rejected a similar argument. In Peoples
State Bank v. Kelly, 78 Ind. App. 418, 136 N.E. 30 (1922) an officer of a corporation
embezzled $1,500.00 and deposited the money in the Peoples State Bank. The corporation
sued the officer and obtained a judgment in the amount of the theft. Thereafter Kelly was
appointed as receiver for the corporation and sued the Bank for the $1,500.00 on the theory
of money had and received. In response the Bank asserted, among other things, that the
corporation had already received a judgment in that amount and therefore the receiver was
precluded from recovering in the instant action. The trial court rejected the Bank's argument
and this court affirmed on appeal. In so doing we held:
The general rule, applicable to this contention, as stated in other jurisdictions
and recognized by this court, is that when an owner pursues a wrongful taker
of his property by suit for damages, and obtains a judgment therein which is
satisfied, then he can no longer assert a claim to the property; but the mere
rendition of such judgment does not have that effect, as it is the satisfaction of
the same and not its recovery, which produces such result.
Kelly, 136 N.E. at 31-32. We reach the same conclusions here. Although Action Steel has
obtained a judgment against Melvin, there is no indication in the record that the judgment
has been satisfied. Indeed there is an inference in the record that Melvin is judgment proof.
In any event Action Steel is not preluded from asserting its claim against Shelby
Finding no error we affirm the judgment of the trial court.
DARDEN, J., and FRIEDLANDER, J., concur.
1 Although not specifically raising the issue as a cross-appeal, Action Steel contends Shelby
Engineering's claims are frivolous, unreasonable, and groundless. Accordingly Action Steel requests appellate
attorney fees. We disagree with Action Steel's contention and thus deny its request.
2 We hasten to add however, that should Action Steel satisfy its claim against Melvin, then Shelby
Engineering may have grounds for a T.R. 60(B) motion for relief from judgment. In like fashion once Action
Steel satisfies its claim against Shelby Engineering, should Action Steel then seek to satisfy its claim against
Melvin, Melvin also may have the same grounds for relief.
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