Schuler v. Dearing Chevrolet Co. , 76 Ga. App. 570 ( 1948 )

1. A Written agreement between two parties — based upon the consideration of the sale of a specific article of personal property and one dollar, receipt of which is acknowledged by the vendee from the vendor, wherein the vendee agrees that, should he decide to sell said property within six months from the date of the first sale, he will give the vendor the first opportunity to repurchase said property at the original purchase-price before offering the same for sale to others — is not void by reason of a lack of mutuality, and being unilateral, and is not void by reason of indefiniteness and uncertainty. On the other hand, such instrument constitutes a valid contract, and a sale of the property by the vendee without first giving the vendor the opportunity to repurchase the same at its original purchase-price constitutes a breach thereof. See Cothran v. Witham, 123 Ga. 190 (51 S.E. 285).

2. The measure of damages where one party is under contract to sell personal property to another, and breaches that contract, generally is the difference between the contract price and the market value at the time and place for delivery. See Sizer v. Melton, 129 Ga. 143, 147 (58 S.E. 1055); see also Bloom v. Americus Grocery Co., 116 Ga. 784 (2) (43 S.E. 54).

3. Ambiguous pleadings when considered on demurrer must be construed most strongly against the pleader. See Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697 (2) (168 S.E. 558), and many cases in the Annotated Code, under § 81-101, catchwords "Ambiguous pleadings."

4. In a suit for the breach of a contract, where the only damages sued for are special damages which are not recoverable, and the petition contains no prayer for nominal damages and no allegation of general damages, nominal damages cannot be recovered. See George B. Curd Co. v. Meigs Lumber c. Co., 25 Ga. App. 504 (1) (103 S.E. 740); Hadden v. Southern Messenger Service, 135 Ga. 372 (3), 374 (69 S.E. 480); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (4) (96 S.E. 437).

DECIDED FEBRUARY 26, 1948. Dearing Chevrolet Company, to whom we shall refer as the plaintiff, brought an action in the Superior Court of Chatham County, against J. C. Schuler, to whom we shall refer as the defendant.

The petition alleges in substance: The plaintiff is an authorized Chevrolet dealer in Savannah. On July 23, 1947, it sold a certain described new Chevrolet automobile for $1596. At the time of said purchase the defendant agreed in writing, in consideration of $1 and the sale of said automobile to him, that, if he should decide to sell the car within a period of 6 months, he would give the plaintiff an option of first refusal to repurchase the automobile for the original purchase-price of $1596. A copy of said document is attached to the petition, made a part thereof and is set forth fully as follows: "Dearing Chevrolet Company, 43-49 West Broad Street, Savannah, Georgia, July 23, 1947. The undersigned has this day purchased from Dearing Chevrolet Company the following described automobile: 1 New 1947 Chev. Fleetline Sportmaster Motor No. EAA-283959 Serial No. 8 EKG-20622 at a price of $1596. In consideration of the sale of this automobile to me and the payment of one (1.00) dollar by Dearing Chevrolet Company, the receipt of which I acknowledge, I hereby agree that in the event I should decide to sell or dispose of the above car within a period of six (6) months from the above date to give to Dearing Chevrolet Company, its successors or assigns, the first refusal of such automobile for the purchase-price above named, that is $1596, before I sell or dispose of it. The option which I have given Dearing Chevrolet Company to repurchase the automobile if I should decide to sell same within six months shall be binding upon my heirs, executors and assigns. (S) J. C. Schuler, Jr. (L.S.) Witness my hand and seal, Signed, sealed and delivered in the presence of; (S) Geo. B. Williams Notary Public. Chatham County, Georgia."

The petition further alleges that, on or about the date of this purchase, the defendant sold the automobile to Bedgood Motor Company, a used-car dealer in Savannah, for a profit which the plaintiff is advised and believes amounts to $500. This sale is alleged to have been made without giving the plaintiff the opportunity to repurchase, said sale to Bedgood Motor Company constituting a wilful breach of the contract. Paragraph 7 of the petition is as follows: "By reason of said breach of contract plaintiff has been endamaged in the amount of $500, representing the value of said automobile over and above the repurchase price stipulated in said option agreement. Said contract was entered into in bad faith by the defendant, in that the Chevrolet automobile in question was purchased by him with the purpose and intent of reselling same immediately thereafter for a large profit. Petitioner shows that, if the car had been offered to it for repurchase, as the contract called for, it would have exercised the option to rebuy it. If petitioner desired, said car could have been resold by it, after exercise of the option, for a much higher price than $2000 in view of the active market for new Chevrolet cars. However, in actuality petitioner would not have resold said car above the list price which it adheres to. For said reasons any sums recovered by it on account of defendant's breach of contract will be contributed by petitioner to some worthy charitable cause." Paragraph 8 of the petition is as follows: "Because of defendant's bad faith in the premises, petitioner is entitled to recover reasonable attorney's fees and other expenses of litigation in the amount of not less than $150, for which he sues in addition to the damages hereinabove set forth." The petition prays for a judgment of $600.

The defendant demurred generally to said petition because: "1. The matters and facts set out in said petition do not constitute any cause of action against this defendant. 2. The petition sets forth no cause of action, because the petition shows upon its face that the plaintiff has not been damaged. 3. The petition sets forth no cause of action, because the petition shows upon its face that the alleged damages sought to be recovered by the plaintiff are remote, speculative, and uncertain. 4. The petition sets forth no cause of action, because, — (a) if the said instrument is an option, the same is void and can not be enforced for the reason that the optioner, the defendant in this case, was and is not bound to sell; (b) if the instrument sued upon is not an option but a contract, the same is void by reason of the fact that it lacks mutuality and is unilaterial; (c) the said alleged instrument, whether a contract or an option, is void, by reason of indefiniteness and uncertainty."

The defendant also specially demurred to said petition because: 1. The allegation in the seventh paragraph of the petition, to wit — ``If the petitioner desired, said car could have been resold by it, after exercise of the option, for a much higher price than $2000 in view of the active market for new Chevrolet cars' — should be stricken from said petition, for the reason — (a) it contains a conclusion of the pleader; (b) the allegation is speculative, remote, indefinite, and uncertain; (c) it is in direct conflict with the following portion of the seventh paragraph, to wit, ``However, in actuality, petitioner would not have resold said car above the list price which it adheres to.' 2. The allegation in the seventh paragraph of the petition — to wit, ``Said contract was entered into in bad faith by the defendant, in that the Chevrolet automobile in question was purchased by him with the purpose and intent of reselling same immediately thereafter for a large profit; — and the allegations of the eighth paragraph with reference to the defendant's alleged bad faith, and the claim for $150 attorney's fees, should all be stricken from said petition, because the allegations in said petition show upon their face that the plaintiff is not entitled to recover attorney's fees or expenses of litigation. 3. The allegation in the seventh paragraph of said petition — to wit, ``For said reasons any sums recovered by it on account of defendant's breach of contract will be contributed by petitioner to some worthy charitable cause' — should be stricken from said petition, because, (a) it is irrelevant to the alleged cause of action; (b) it is a gratuitous statement, made solely for the purpose of prejudicing the defendant's case; (c) it is contradictory of the previous allegations in said paragraph, because the plaintiff has alleged that it would not have sold the car if it had obtained the same from defendant for any higher price than $1596, and accordingly there would have been no profit and no amount which the plaintiff could have contributed to any cause."

Upon the hearing the trial judge entered a judgment on the demurrers, as follows: "The court is of the opinion that: 1. The option-contract is a valid, written instrument and, thereupon, overrules the defendant's general demurrer and each ground thereof. 2. The court also overrules the first ground of the defendant's special demurrer, overrules the first paragraph of the second ground of the special demurrer, but sustains that part of the second ground of the special demurrer which goes to the allegations of the eighth paragraph with reference to a claim for $150 attorney's fees and expenses of litigation, and strikes those claims of damage from the petition. 3. The court sustains subsection (a) of the third paragraph of the special demurrer, going to the allegations concerning contribution of any recovery to some worthy charitable cause, but the court does not subscribe to nor sustain the statements contained in subsection (b) and (c) of that ground of the demurrer." This judgment is assigned as error. 1. Counsel for both parties rely on Cothran v. Witham, 123 Ga. 190 (supra). The plaintiff relies on this case to support its position that the instrument sued upon is a valid and binding contract. The defendant relies upon this case to support his position that the damages sought are too remote, speculative, and uncertain to form the basis of a recovery. The facts in Cothran v. Witham, supra, are substantially as follows: W.S. Witham, President of the Bank of Cartersville, sold J. C. Cothran 5 shares of capital stock in said bank. At the same time Cothran signed an instrument, based upon the consideration of the price paid and for value received, agreeing not to sell any part of the stock at any time without first offering the same to Witham at the book value and giving him ample time to accept or refuse the purchase. The damages alleged consisted of $300 lost in profits, $90 lost by reason of purchase of other stock above the book value, $34 attorney's fees and railroad fare, $500 per year loss growing out of his defeat for presidency of the bank, and general damages in the sum of $5000. The court held that the contract was not void for indefiniteness as to the time when it should become operative; that it was not unilateral; that the allegations of special damages were too general, vague, and speculative to be the basis of a recovery; and that the plaintiff was entitled to recover nominal damages only. In the 4th division of the decision the court said: "The allegations of damage on account of his defeat for the office of president and financial agent of the bank, at the election next succeeding the alleged breach of the contract by Cothran, however, were too contingent and speculative to be the basis of a recovery. It was not alleged that, had Cothran retained the stock, he was under any obligation, legal or otherwise, to vote it for Witham in the election of officers. Apparently there was no restriction on his right to vote it for whomsoever he chose. Nor was he under any obligation to sell the stock to Witham before the election took place, thus putting it in Witham's power to control the stock independently of him. In order to recover damages on these allegations, then, one of two alternatives must be assumed, viz., either that Cothran would have sold the stock to Witham before the election if he had not sold it to the parties to whom he did sell; or that, in the event he had not sold the stock at all, he would have voted it for Witham for president and financial officer of the bank. In the nature of things, neither of these alternatives is susceptible of proof. It follows that, under the allegations of the petition, Witham is entitled only to nominal damages for the breach of the contract, and that the defendant's special demurrer should have been sustained."

On the question of the validity of the contract, the case ofCothran v. Witham is very much in point with the case at bar. Indeed the case at bar is more specific as to the duration of the obligation and as to the amount to be paid for the repurchase of the property.

2, 3. It is noted that the petition, while properly charging the difference in the market value of the automobile and the contract price at the time and place for delivery, continues with a charge as follows: "If petitioner desired, said car could have been resold by it after exercise of the option for a much higher price than $2000 in view of the active market for new Chevrolet cars. However, in actuality petitioner would not have resold said car above the list price which it adheres to." Elsewhere the plaintiff charges that it is an authorized dealer in Chevrolet automobiles. Construing the petition, on demurrer, most strongly against the pleader, the foregoing allegations of the petition alleging the plaintiff to be a dealer in Chevrolet automobiles, and alleging that it adheres to the list price in the sales thereof, amounts to allegations that it would have sold the automobile in question at the list price. While the measure of damages where one party is under contract to sell personal property to another, and breaches that contract, generally is the difference between the contract price and the market value at the time and place for delivery (see Sizer v. Melton, 129 Ga. 143, supra; and also Bloom v. Americus Grocery Co., supra), yet, ambiguous pleadings when considered on demurrer must be construed most strongly against the pleader. See Moore v.Atlanta Joint Stock Land Bank, supra, and many cases under § 81-101 of the Code (Ann.), catchwords, "Ambiguous pleadings." Therefore it follows that the petition shows upon its face that the plaintiff has not been damaged.

4. It is insisted that, under the allegation of the petition, the plaintiff is entitled to at least nominal damages. The damages alleged in the instant petition are special damages.Cothran v. Witham, supra, was treated by the court as an action for general damages and special damages growing out of the breach of the contract. While it is well settled that nominal damages are recoverable when sought in the case of a breach of a contract, although no special damage arises by reason of said breach, the same are not recoverable when the petition seeks neither general nor nominal damages. In a suit for the breach of a contract, where the only damages sued for are special damages which are not recoverable, and the petition contains no prayer for nominal damages and no allegation of general damages, nominal damages can not be recovered. See George B. Curd Co. v. MeigsLumber c. Co., supra; Hadden v. Southern Messenger Service, supra; Twin City Lumber Co. v. Daniels, supra.

The trial court erred in overruling grounds 1 and 2 of the general demurrer to the petition.

Judgment reversed. MacIntyre, P.J., and Gardner, J., concur.