(602 P.2d 906)
No. 79CA0435Colorado Court of Appeals.
Decided October 25, 1979.
Plaintiffs appealed dismissal of their claims against ranch owner for conversion of their horse.
Reversed
1. CONVERSION — Horse — Boarded At Ranch — Abandoned By Owners — Attempted Notice — Sale of Horse — In Person — By Telephone — Not Adequate — No Notice — Certified or Registered Mail — Ranch Owner Liable. Even if horse boarded at ranch for monthly fee was abandoned by its owners, the unsuccessful attempts by ranch owner by telephone and in person to notify owners that he intended to sell the horse did not constitute proper notice of such sale under the applicable statute; thus, since the ranch owner failed to send notice by registered or certified mail as required by the statute, he was liable to the owners for conversion of the horse.
Appeal from the District Court of Weld County, Honorable Jonathan W. Hays, Judge.
Schey and Schey, Neil E. Piller, for plaintiffs-appellants.
Honaker Wilbur, P.C., James F. Wilbur, for defendant-appellee.
Division II.
Opinion by JUDGE PIERCE.
Plaintiffs appeal the trial court’s dismissal of their claims against defendant for conversion of their horse. We reverse.
Defendant assisted plaintiffs in purchasing a horse in July 1975. The parties agreed that, beginning in September 1975, the defendant would board the horse at his ranch for a monthly fee. Plaintiffs made one payment of $40 to defendant in October 1975, but made no further payments. Defendant demanded payment by telephone in December 1975, and directly, during a
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chance meeting at a local store, on February 1, 1976. On both occasions plaintiffs said they would make payment. Defendant mailed plaintiffs a certified letter, again demanding payment, on February 2, 1976. Again, plaintiffs did not respond. In mid-February defendant posted notices in several local stores that the horse was for sale. By the first of March, after making two unsuccessful attempts to notify plaintiffs of his intentions, defendant sold the horse.
Plaintiffs brought action to recover the value of the horse and tack. The trial court found that the horse had been abandoned and dismissed plaintiffs’ action.
Plaintiffs contend, among other things, that the trial court erred in ruling that the horse could be presumed abandoned as defined by § 38-20-116(1), C.R.S. 1973 (1978 Cum. Supp.), and that defendant had substantially complied with the notice requirement of § 38-20-116(2), C.R.S. 1973 (1978 Cum. Supp.).
[1] Assuming without deciding that the trial court’s ruling with respect to abandonment was correct, we agree that the trial court erred in finding that defendant provided plaintiffs the required notice of sale. Although defendant made unsuccessful attempts by telephone and in person to notify plaintiffs of the sale, he failed to send notice by registered or certified mail as required by the statute, thereby making him liable to plaintiffs. Section 38-20-107(2), C.R.S. 1973 (1978 Cum. Supp.).
The judgment is reversed with directions to reinstate the complaint and for further proceedings consistent with this opinion.
JUDGE RULAND and JUDGE BERMAN concur.
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