December 1988, Madden, according to Deere's records, owed $1,309.37. After a number of unsuccessful attempts to collect the balance, Warrick met with Madden in the first week of August 1989. Again, Warrick was unable to collect the delinquent amount.[2]
At the August meeting, Warrick asked to see the skidder. The following morning, Madden took Warrick to view the skidder at the site of his logging operation, which was on property owned by Container Corporation ("Container"). Several days later, at approximately 10:00 p.m. on the night of August 9, 1989, Warrick entered Container's property without the permission or knowledge of Madden or Container and repossessed the skidder. Because the site was deserted, the repossession was accomplished without physical or verbal altercations with anyone. Through deposition testimony, however, Madden alleged thatwhen he arrived for work on the morning of August 10, a padlock, which he says had secured a gate blocking access to Container's property, had been broken. Warrick denies the existence of a fence or a gate.
On August 29, 1989, Madden sued Deere and Warrick for damages, alleging a conversion of the skidder. The defendants subsequently moved for a summary judgment, which was entered on February 19, 1991. Madden contends that the summary judgment in favor of the defendants was improper because, he says, the record reveals substantial evidence of a wrongful repossession. In particular, he insists that Deere's repossession was accomplished (1) after his obligation on the note had been extinguished through an accord reached by the parties regarding the amount due on the account; and