Weber Motor Car Co. v. Roberts , 203 Mo. App. 509 ( 1920 )

This is an action for the purchase price of one Studebaker six automobile, touring car type, 1914 model.

Plaintiff's amended petition charges, that on the 24th day of September, 1913, the defendant contracted and agreed in writing to purchase the automobile referred to for the sum of $1570; that plaintiff has tendered full performance of its part of the contract, and has ever been ready, willing and able to deliver said automobile upon payment of the purchase price, and has offered to do so, but that the defendant has refused and neglected to accept and pay for same; that the plaintiff is holding the said automobile for the use of the defendant and subject to his order, and is ready, willing and able to deliver the same to him at and for the price agreed upon.

Judgment is asked for the full price of the automobile, less the sum of $100 paid on account at the time the contract was entered into.

The answer is a general denial and also a counterclaim, but inasmuch as this counterclaim was dismissed by defendant at the conclusion of the plaintiff's testimony it is out of the case.

Upon a trial the court sustained a demurrer to plaintiff's evidence, whereupon the plaintiff took an involuntary non-suit, and after an unavailing motion to set same aside has brought the case here, contending that the court erred in its view of the law as applied to the facts, and that the evidence as submitted by the plaintiff made a case for the jury.

There is no controversy over the facts, the appeal presenting merely a question of law, and that question is this: Whether in the sale of chattels where the buyer has refused to accept the goods and the seller thereupon chooses to hold the buyer to the contract and sets aside the goods for the use of the buyer and sues for the contract price, is it a necessary part of plaintiff's cause of action to show that at the time of the trial he still has in his possession or under his immediate control the specific article sold or one of like kind for immediate delivery to the buyer; or is it sufficient for the seller to merely show that while he hasn't immediate possession of such article, he is able thereafter within a reasonable time to acquire such an article and deliver same to the buyer upon payment of the judgment for the purchase price?

The evidence disclosed that after the contract was made in September, 1913, and which contract provided that the automobile was to be delivered to the defendant as soon as possible, the plaintiff thereafter on December 8, 1913, notified the defendant that the car was ready for delivery and was at its place of business in the city of St. Louis. Plaintiff does not manufacture automobiles, but handles the Studebaker make of cars and buys them from the Studebaker Company of Detroit, Michigan. At the time the defendant went to the plaintiff's place of business and looked at a specific car which was of the type contracted for, and said he would take out the car in the spring. Thereafter in the spring of 1914, the defendant was again notified and brought his wife; they looked the car over again, and he stated that he would take it out shortly. He was again asked to take the car in June of 1914, but failed to do so. This suit was instituted in November, 1914, and the evidence shows that the plaintiff had on hand for delivery to the defendant a car of the type sold the defendant at all times from December 8, 1913, to the month of July, 1915, at which time the plaintiff had disposed of all of its Studebaker automobiles of the 1914 model. The cause was tried below in February, 1917, and at that time the plaintiff did not have in its possession for the purpose of delivery to the defendant a car of the type and model covered by the contract.

The president of the plaintiff corporation, however, testified that while they were not at the day of the trial in a position to deliver to defendant a 1914 model Studebaker automobile, that he thought a car of that type could be delivered by his company in thirty days, stating he had information from the Studebaker Company that they can deliver him a car within thirty days to fill this order.

The learned trial judge was of the opinion that the plaintiff could not recover the contract price under these facts.

In a learned and exhaustive brief, plaintiff's counsel contend that because of the defendant's default in the first instance, plaintiff is now entitled to a reasonable time to make delivery after the defendant pays the purchase price and after he makes a subsequent demand for an automobile; that the plaintiff was ready once to deliver the automobile, and that it can get ready again, but that there is no need to get ready the second time unless and until the defendant pays the purchase price, either voluntarily or involuntarily, and signifies his intention to accept what he contracted for. Plaintiff's counsel has referred us to many authorities from other jurisdictions, all of which we have examined, but none directly involve the question under consideration.

It will not be necessary to review these authorities, as we think on reason and under the Missouri cases hereafter referred to, the question involved must be determined against the plaintiff.

It is well settled by a long line of decisions in this State that upon the refusal of a buyer to accept personal property which he has contracted to purchase from the vendor, the vendor has the choice of three remedies. First, the vendor may, if the contract has been so far performed by him that the property is ready for delivery before he has notice of the buyer's intention to decline acceptance, treat the property as belonging to the buyer, hold it after tender, subject to the latter's order, and recover the full agreed price; second, the vendor may sell the property for the buyer's account as his agent, taking the requisite steps to protect the latter's interest and obtain the best price available, and then recover the difference between the proceeds of the sale and the agreed price; and third, the vendor may treat the sale as ended by the buyer's default or refusal to accept the goods and treat the property as his and recover the actual loss sustained, which is ordinarily the difference between the agreed price and the market price. [Crown Vinegar Co. v. Wehrs, 59 Mo. App. 493; Black River Lumber Co. v. Warner,93 Mo. 374; 6 S.W. 210; Dobbins v. Edmonds, 18 Mo. App. 307; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; Walker v. Nixon, 65 Mo. App. 326; Koenig v. Truscott Boat Co.,155 Mo. App. 685; 135 S.W. 514; Campbell v. Woods, 122 Mo. App. 719, 99 S.W. 468; St. Louis Range Co. v. Kline Mercantile Co.,120 Mo. App. 438, 96 S.W. 1040; Oehler v. Fruit Co., 162 Mo. App. 446, 142 S.W. 811.]

In the case of Oehler v. Fruit Company, supra, this Court, through NORTONI, J., reviewed the Missouri cases, and held the foregoing modes of redress are open to the seller when the vendee has breached the contract of sale and refused to accept the goods, and that the rule is not confined to the case of manufactured articles alone, but also to articles of merchandise which are staple and have a market value. This Court in the Oehler case allowed the seller to sue for the contract price of apples. In this case the defendant purchased all of plaintiff's apples contained in two orchards, which were as much as 2½ inches in diameter. Upon the apples being tendered and refused, the plaintiff sued for the full contract price, alleging that she stood ready and willing at all times to comply with the contract by delivering the apples. The defendant contended that the plaintiff could not recover the full contract price because of the fact that the evidence showed that she had used the identical apples and converted them to her own use after they had been refused by the defendant. In disposing of this contention, Judge NORTONI, said, l.c. 459:

"But it is said the instruction on the measure of damages was erroneous for the reason it appears defendant used the identical apples and converted them to her own use thereafter. If such were the fact, of course, the rule of compensation would be the difference between the market value of such apples as plaintiff used and the contract price."

This Court held the proof in that case did not show that the plaintiff had used the apples, but the intimation is clear, that if such was the fact, then the plaintiff could not recover the full contract price, but only the difference between the market price and the contract price. In other words, it was incumbent on the plaintiff to hold the apples for the benefit of the defendant.

The plaintiff has adopted the first of the remedies above set forth, and is suing for the contract price. Having chosen that remedy it was incumbent on it to tender to the defendant the type of automobile contracted for, which the evidence clearly shows was done, and upon refusal of the defendant to accept, it was further incumbent on the plaintiff to hold not necessarily the particular automobile of 1914 type for the use of the defendant, but at least an automobile of like kind so as to be ready upon the payment of the purchase price, either voluntarily or involuntarily, to deliver same to defendant.

It will be noted upon reading the authorities above where in those cases the plaintiff has chosen to sue for the contract price that the court has invariably laid down the rule that in such cases it is the duty of the plaintiff where the buyer has declined acceptance of the property, to treat the property as belonging to the buyer and hold it for his benefit, either in his actual possession, or in some one else's possession where it can be obtained by the plaintiff for delivery to the defendant, as for instance in a storage warehouse.

The plaintiff did not do this, but sold all of the 1914 types of Studebaker automobiles that it had, and at the time of the trial was not then able to make delivery. All the plaintiff could do in the event defendant paid the price, was to obtain an automobile of the type contracted for within thirty days, and this fact was not an absolute certainty, for the plaintiff's president says in his testimony: "I think the car can be delivered in thirty days," and that he has information from the Studebaker Company which manufactures the automobiles of that type that they can deliver a car within thirty days. This is not a certainty by any means, as the Studebaker Company might wilfully refuse or may be unable to so deliver the car, and as suggested by counsel for defendant at the trial, the factory of the Studebaker Company may burn down.

We think under the foregoing decisions and upon reason that the plaintiff having chosen this mode of redress it was incumbent upon it to have an automobile of the type called for by the contract, either in its possession, or where it could be obtained without delay for the purpose of turning over to the defendant at such time as he voluntarily or involuntarily paid the purchase price. The plaintiff was not bound to choose this remedy, but if it thought or was advised that this was the only remedy that would give to it adequate compensation and redress, it could have asked in addition to the purchase price interest on the same from the time of the defendant's wrongful refusal to accept the property, and it could also recover whatever reasonable costs and expenses that it could show it had necessarily incurred in taking care of the automobile which it was holding for the use and benefit of the defendant. The fact, as contended by plaintiff's counsel, that such a method would have been more detrimental to the defendant than the one adopted, is not a sufficient answer, as this is a matter of defendant's concern, and because of the fact that the automobile in the event it had been kept on hand or stored for defendant's use would have become lessened in value and would in fact have become a second-hand car, would not have excused defendant or have been a matter that he could have set up in defense of the action.

The plaintiff contends that in any event the Court erred in granting the peremptory instruction as it was clearly entitled in any event to nominal damages. If this were a case where the plaintiff had alleged a breach of contract and had proven such but had failed merely in showing the character of its damage, or in the event no damage had been shown, then plaintiff would be right in its contention and would be entitled to an instruction for nominal damages, but in the manner in which this suit was brought it was clearly a part of plaintiff's cause of action to show not only that it tendered to defendant an automobile of the type contracted for, but also that it was at the time of the trial ready, able and willing to then deliver to the defendant the said character of automobile. It having failed to do so, it failed to show a material part of its cause of action, hence the Court did not err in taking the case from the jury.

It follows from what is herein said that the judgment should be affirmed.