DocketNumber: Civ. A. No. 17893-3
Citation Numbers: 318 F. Supp. 637
Judges: Becker
Filed Date: 9/16/1970
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT ON THE ISSUE OF DAMAGES
This is an action brought under the diversity statute, Section 1332 of Title 28, United States Code, in which plaintiff alleged that defendant ordered a mobile home from pláintiff but refused to pay for the home after it was delivered to him by plaintiff.
On June 23, 1970, as the result of defendant’s failure to comply with Standard Pretrial Order No. 1 and to attend a scheduled deposition, default judgment was entered against him on the issue of liability. See Marriott, Inc. v. Hanson (W.D.Mo.) 50 F.R.D. 396.
Thereafter, on plaintiff’s prayer for actual and punitive damages, this cause came on for a plenary evidentiary hearing at 10 a. m., July 20, 1970. On the basis of the evidence adduced at the hearing, the following findings of fact are made.
The plaintiff initially sent the mobile home in question to be delivered by its truck driver, one Silas. Silas was instructed to secure cash payment or a certified check upon delivery of the mobile home. Also, there was evidence that it was the practice of plaintiff to
Plaintiff made its second effort to collect from defendant through its driver, Hill. Hill was given the certificate of origin and dispatched to the lot of defendant with instructions to collect the price of the mobile home and not to leave the certificate of origin with defendant unless he received cash payment. When Hill arrived at the lot, defendant requested that he be given the certificate of origin, stating that he would pay later. Hill then placed a telephone call to Mr. Masdon in plaintiff’s headquarters and was told by Masdon to return with the certificate of origin unless he received cash payment. Hill thereupon undertook to argue with Masdon, stating that defendant was “all right.” Masdon repeated his instruction that the certificate of origin should be returned unless Hill received cash payment. Hill then made profane remarks to Masdon and was finally told by Masdon that if he did not carry out orders and either receive cash payment or return with the certificate of origin, he would not have a job with plaintiff when he returned. Hill had either already given the certificate of origin to defendant before the telephone call to Masdon or gave it to him shortly thereafter.
Thereafter, when Masdon requested cash payment of Hanson, Hanson demanded over the telephone that certain repairs be made on mobile homes which defendant had previously purchased from plaintiff. Masdon asked for particulars. Hanson gave the particulars over the telephone and Masdon wrote them all down. Subsequently, Masdon took a crew to defendant’s lot and worked some three days in making all of the requested repairs. Then, again, Masdon requested defendant to pay for the mobile home. Defendant replied that there was “more work to be done” and that he had no money and would send plaintiff a check for the purchase price when he obtained enough money. Thereafter, on the date of the hearing, Masdon learned that the mobile home had been sold by defendant. The price of the mobile home to defendant is established by Boone’s signature on the invoice which he signed upon delivery of the home. The invoice shows the price to have been $6232.50 at the time of the delivery of the home by plaintiff to defendant. Accordingly, the evidence in this cause shows plaintiff to have been damaged in that amount and to be damaged further in the amount of interest on $6232.50 at 6 per cent per annum from May 13, 1969, the date of delivery of the mobile home to defendant.
Plaintiff has also demanded punitive damages, asserting that the wrong done by defendant in this case was one characterized by fraud and deceit.
For the foregoing reasons, it is concluded that plaintiff should have and recover from defendant damages in the sum of $6232.50 plus interest thereon at 6% per annum from May 13, 1969, and that punitive damages should not be recovered. It is therefore
Adjudged that plaintiff have and recover from defendant the sum of $6232.-50 plus interest thereon at 6% per annum from May 13, 1969.
. In his letter brief, defendant undertakes to deny any liability at all on the ground that a new contract providing for indefinite future payment was created in plaintiff’s permitting defendant to obtain the Certificate of Origin from plaintiff’s driver and acquiescing in the subsequent demands of defendant for repairs on other units. These considerations are irrelevant, however, to the issue of damages and would only be relevant on the issue of liability, on which plaintiff has already taken a default judgment against defendant.
. Plaintiff apparently asserts the rule that a promise to pay without any intention to pay constitutes a fraud. This appears to be the general and prevailing rule.