Pettaway v. Commercial Automotive Service, Inc. , 49 Wash. 2d 650 ( 1957 )

Finley, J.

This is an action for damages for the breach of an alleged contract for the purchase and sale of an automobile.

The defendant company displayed a special model, a 1953 Buick “Skylark,” automobile in its show window. The plaintiff saw the car and discussed its purchase with a Mr. Shaw, one of defendant corporation’s salesmen. Thereafter, the plaintiff signed one of the defendant corporation’s order forms on which the price of the new car was stated as $5,667, and $1,500 was designated as a credit allowance for plaintiff’s 1948 Chrysler. The plaintiff, a merchant seaman, testified that the parties agreed that he would make a cash payment of five hundred dollars or more, upon his return from a voyage to the Orient, presumably sometime in 1954; that the deferred balance was to bear interest and to be paid in thirty-six monthly installments at the rate of at least one hundred dollars per month. Plaintiff’s testimony further indicated that, when he returned from the voyage of some two or three months duration, he tendered a cash payment to Mr. Shaw in an amount in excess of the five hundred dollars; that he was informed the defendant corporation had sold the 1953 Buick “Skylark” model to someone else. Apparently, the manufacturer had allotted only three automobiles of the particular model to the defendant company, and defendant company failed to produce one for the plaintiff. Thereupon, plaintiff commenced this action for damages for breach of contract. At the time the action was commenced, defendant company still had plaintiff’s 1948 Chrysler in its possession.

The jury awarded $1,325 to plaintiff. By answer to special interrogatories, it set (a) $825 as the market value of plaintiff’s Chrysler; (b) $300 for plaintiff’s disappointment, mental anguish, loss of sleep, humiliation, and damages to his repütation, allegedly resulting from the breach of the contract and the deprivation of the allegedly unique chattel; and (3) $200 by reason of deprivation of use of an automobile. The defendant corporation appealed, but its salesman, a codefendant herein, did not.

The basic question in this case is whether the parties litigant entered into a simple, yet legally significant, contractual relationship for the sale and purchase of an automobile. The essentials of such a contractual relationship could be spelled out as follows: (1) a vendor and a vendee; (2) an agreed price; (3) certainty as to the subject matter; (4) agreement or a promise by the vendor to sell for the agreed price; (5) agreement or a promise by the vendee to purchase at the agreed price. In its instruction No. 19, the trial court advised the jury as follows:

“The terms of a contract must be definite and ascertainable. Neither the court nor the jury can create a contract or create terms of a contract where the parties to the contract have failed so to do. If any element essential to the contract has been omitted or is incapable of ascertainment, the contract is invalid and unenforceable.

“The alleged contract involved in this case is a contract for the purchase and sale of an automobile. The minimum essential requirements of such a contract are an agreement as to the automobile to be sold, the purchase price, and the method and terms of payment. If another automobile is to be given in part payment, it is essential that the parties agree, first, upon the acceptance of such other automobile as part payment, and, second, upon the value of such other automobile to be credited upon the purchase price.”

It may be assumed that a competent legal craftsman would have handled the transaction somewhat differently. But the question is not what a legal craftsman would have done or what advice he would have given to the parties. The question presented here concerns the conduct of laymen — what they did or did not do — and the legal result or effect to be ascribed to their actions or conduct. In 1 Corbin on Contracts 66, 69, § 29, it is said:

“We must not jump too readily to the conclusion that a contract has not been made from the fact of apparent incompleteness. People do business in a very informal fashion, using abbreviated and elliptical language. A transaction is complete when the parties mean it to be complete. It is a mere matter of interpretation of their expressions to each other, a question of fact. An expression is no less effective that it is found by the method of implication.”

We are convinced that instruction No. 19 was a proper statement of the law, and that the jury arrived at a proper solution of the basic dispute between the parties; namely, that the arrangements between them were not too indefinite to constitute a binding legal contract for the sale and purchase of an automobile. Miskowitz v. Starobin, 181 Misc. 445, 41 N. Y. S. (2d) 786; In re Renfro-Wadenstein, 47 F. (2d) 238.

Appellant further contends that the arrangements between the parties did not extend beyond mere preliminary negotiations; that this is at least partially evidenced by the fact that the parties contemplated the execution of a more formal document to embody the terms of their agreement.

The fact that the parties contemplated that a more formal contract would be executed did not necessarily vitiate the binding force of their simple buy-and-sell agreement. Under circumstances such as herein involved, a written draft of the contract is viewed merely as a convenient memorial or record thereof. Fuller v. Ostruske, 48 Wn. (2d) 802, 296 P. (2d) 996.

In further support of its contention that the respondent failed to prove the existence of a contract, appellant argues that the corporation order form, which was partly filled in by the salesman, bore a printed statement to the effect that it was not binding until accepted by the company, and furthermore, that the order form never was specifically approved or accepted by the company. The acceptance of respondent’s Chrysler constituted a part payment and took the sale out of the statute of frauds. Furthermore, under the circumstances, we think that the written order was not necessary to create a contract and that it has little significance other than being evidence of the price of the “Skylark” and the amount allowed for the Chrysler.

Now, as to the question of damages: Appellant contends that the court erred in submitting to the jury the issue of damages for deprivation of the use of respondent’s Chrysler. The evidence was inadequate for the jury to make an award in any amount for that item. There is testimony in the record that respondent hired a taxicab a couple of times for six dollars; but these events were not connected with the breach of the contract in question. The award is the result of pure speculation. This assignment of error is well taken.

The jury awarded respondent three hundred dollars for the mental anguish occasioned by the failure to deliver the “Skylark” for “conspicuous consumption.” The appellant contends that the court erred in submitting that issue to the jury and instructing upon it. We agree. Consequential damages are sustainable if they flow naturally and inevitably from a breach of contract and are so related to it as to have been within the contemplation of the parties when they entered into it. Dally v. Isaacson, 40 Wn. (2d) 574, 245 P. (2d) 200. The emotional reactions peculiar to a particular individual which might flow from a breach of a contract of sale of an automobile are too subjective and variable to be contemplated prior to a breach of contract, or ascertainable afterward. Such suffering, if any, is not compensable in an action for damages for breach of contract.

In his complaint, respondent prayed for $2,000 for breach of the alleged contract to sell him the Buick “Skylark,” and for $1,750 for damages for retaining his 1948 Chrysler. In answer to special interrogatories, the jury awarded no damages for appellant’s breach in failing to deliver the new car, but as indicated above, the jury did allow $825 as the value of respondent’s 1948 Chrysler at the time appellant took custody of the automobile, apparently on the theory that appellant had converted it. Value at the time of conversion of course would have been the proper measure of damages in a tort action. Baumgardner v. KerrGifford & Co., 144 Wash. 206, 257 Pac. 390; Fischnaller v. Sussman, 167 Wash. 367, 9 P. (2d) 378.

Here, however, respondent’s action is for breach of contract. Furthermore, there is no evidence in the record to sustain an action for conversion. Under the contract for sale of the new car, respondent parted with the right to possession, and appellant came lawfully into possession of the 1948 Chrysler. Bronner v. Van Cortlandt Vehicle Corp., 198 N. Y. S. 525. Respondent failed to show an unlawful taking, unlawful possession, unlawful user or misuser of the car, or an unlawful detention.

The proper measure of the buyer’s damages where the seller has failed to deliver goods is the market value thereof at the place fixed for delivery, less any unpaid part of the contract price. McCormick on Damages 665, § 175; see, also, RCW 63.04.680. Under this standard, the buyer is made whole in that he is put in as good a position as he would have been if the seller’s obligation had been fulfilled.

In the trial court, the appellant excepted to the trial court’s refusal to give an instruction which, in substance, embodied the above measure of damages. However, the trial court’s refusal to give the requested instruction has not been assigned as error. Furthermore, no error has been assigned to the jury’s award of damages of $825, ostensibly representing the value of respondent’s Chrysler. There is no cross-appeal. As a consequence of the foregoing, the matters or questions involved will not be considered on appeal. Walker v. Copeland, 193 Wash. 1, 74 P. (2d) 469; Rules on Appeal 42 (1) (f) and 43, 34A Wn. (2d) 45, 47, as amended effective January 2, 1953.

For the reasons stated hereinbefore, it was error to allow the respondent damages in the amounts of $300 for mental anguish, and $200 for loss of use of an automobile, and the judgment must be modified and reduced in this respect. However, as to the jury’s award of $825 for respondent’s 1948 Chrysler, the judgment should be affirmed. It is so ordered.

Mallery, Schwellenbach, Hill, Weaver, Rosellini, and Ott, JJ., concur.