¶1dissenting.
¶2I dissent for several reasons. First the trial judge made certain findings of fact which were essential to his judgment. The Majority's opinion has re-assessed the facts which is not our function on appeal. See-ondly, Emerick's denial of entry to a building he had agreed to purchase has some color of right, since he had been allowed by the owner, Buchonok, to take possession without consummating the transfer of title. Therefore, denial of entry under color of right doesn't establish Emerick's intent to take Buchonok's tools on December 27. Later, the negotiations between Buchonok and Emerick's attorneys established the right to possession to the building only. When Emerick left with Buchonok's tools, the tort was manifestly established without a doubt, but until December 830, no tort could be clearly established.
¶3The Majority's citing of Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E. 251 does not preclude recovery of damages by Buchonok. To the contrary, the actual taking of the tools by Emerick established the injury and damages. Buchonok had given Emerick possession of the building and a license to exclude others from the premises.
¶4The trial judge heard the evidence and made his findings of fact. Those findings of fact support his judgment. I would affirm the trial court.