General Motors Acceptance Corp. v. Turner Insurance Agency, Inc. , 96 Idaho 691 ( 1975 )

McFADDEN, Justice

(concurring in part and dissenting in part).

I must respectfully dissent from that portion of the majority opinion holding that Turner Insurance is not liable to GMAC for return of the unearned insurance premiums. In my opinion, liability of Turner Insurance to GMAC should be predicated on the conclusion that Turner converted the funds of GMAC or that a resulting trust was created when GMAC paid funds to Turner Insurance for the purpose of procuring insurance.

I

GMAC paid Turner Insurance the amount of $3,234.00 by two checks for the purchase of a three year physical damage insurance policy. GMAC submitted the checks in response to a letter from Gwen Sheppard, an agent of Turner Insurance, whereby Turner Insurance accepted GMAC’s offer to enter into a three-year contractual agreement. On stubs attached to both checks was the notation “MIC return prem. to apply to o/s ins policy. WHALEN, GILBERT” and account number 11606. Upon receipt, Turner Insurance recorded the amount of “Three Thousand Two Thirty Four & NO/100” (3234.00), as received from General Motors Acceptance for “material damage portion of auto”, on the account of Gerald Wahlen. The check stubs were attached to the Turner Insurance receipt. Turner used $1,078 to pay the first year’s premium, $828 to cover debts allegedly owed to Turner Insurance by Wahlen, and $1,328 was returned to Wahlen.

This court has defined conversion as:

“ * * * any distinct act of dominion wrongfully exerted over another’s personal property in denial or inconsistent with his rights therein, such as a tortious taking of another’s chattels, or any wrongful exercise or assumption of authority, personally or by procurement, over another’s goods, depriving him of the possession, permanently or for an indefinite time.” Warm Springs Properties, Inc. v. Andora Villa, Inc., 96 Idaho 270, 526 P.2d 1106, 1107-08 (1974), quoting Klam v. Koppel, 63 Idaho 171, 179, 118 P.2d 729, 732 (1941).

The money must be specifically described or identified as a specific chattel before an action for conversion by misappropriation of money will lie. Warm Springs Properties, Inc. v. Andora Villa, Inc., supra, at p. 1108 of 526 P.2d.

In the case at bar, GMAC submitted two checks to Turner with the purpose for which the money was to be used noted on a stub attached to each check. Turner Insurance noted this purpose on the receipt issued for the checks accepted. Thus, the funds, when received by GMAC, were specifically identified as to the amount and the purpose for which they were to be used. However, Turner Insurance did not use the funds for the agreed upon purpose; therefore, it is my opinion that Turner Insurance is liable to GMAC under the conversion theory outlined above.

II

The doctrine of resulting trusts, developed in equity is often applied but seldom defined.

“[A] resulting trust arises from the nature or circumstances of consideration involved in a transaction whereby one person thereby becomes invested with a legal title but is obligated in equity to hold his legal title for the benefit of an-' other, the intention of the former to hold in trust for the latter being implied or presumed as a matter of law, although no intention to create or hold in trust has been manifested, expressly or by inference, and although there is an absence of fraud or constructive fraud.” 76 Am.Jur.2d, p. 429 (1975).

See, Restatement, Trusts 2d, § 404, 440 (1959). A resulting trust

“arises by implication of law from their acts and conduct apart from any contract, the law implying a trust where the acts of the party to be charged as trustee have been such as are in honesty and fair dealing consistent only with a purpose to hold the property in trust, notwithstanding such party may never have agreed to the trust and may have really intended to resist it.” Shepard v. Dougan, 58 Idaho 543, 553-54, 76 P.2d 442, 445 (1937).

See, V Scott on Trusts, § 404.1, p. 3213 (1967); Motherwell v. Taylor, 2 Idaho 254, 10 P. 304 (1886).

Turner Insurance Company accepted money from GMAC for the purpose of purchasing property damage insurance for three years; with the acceptance of the money, a trust relationship to use the money for the designated purposes was created. Turner did not use the funds for that purpose. Therefore, the acts of Turner Insurance were contrary to the trust relationship implied between Turner Insurance and GMAC and Turner should be held to be liable to GMAC¹ for breaching that resulting trust relationship. The record indicates that there is clear, cogent, and convincing evidence to give rise to a resulting trust. Mollendorf v. Derry, 95 Idaho 1, 5, 501 P.2d 199 (1972).

1 . Wahlen is not entitled to the funds because “[t]he trust results in favor only of the person advancing the consideration, and not in favor of one for whose benefit the purchase may have been intended”. 76 Am.Jur.2d, Trusts, § 206, p. 437 (1975). Accord, Restatement, Trusts 2d, § 440 (1959).