90 MADISON-SMITH CADILLAC CO. V. SHAUMAN. [192 MADISON7 SMITH CADILLAC COMPANY V. SHAUMAN. 4-;1107 . Opinion delivered January . 27, 1936. SALES—BREACH OF CONTRACT—DAMAGES.—Where a seller agreed to accept a buyer's wrecked car and deliver a certain car upon payment of a sum mentioned, the contract being executory and the buyer having committed default by failing to make the cash pay-
ARK.] MADISON-SMITH • CADILLAC CO. v. SHAUMAN. 91 ment, held that the dealer was not required to account for the difference between the value of the second car and the amount of the cash payment owed by the buyer. Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge ; 'reversed. Action' by H. E. Shauman against Madison-Smith Cadillac Company and another. From a judgment for plaintiff defendants appeal. Owens & Ehrman, for appellants. • 1 = 1. E. Wiley, for appellee. BAKER, J. This case is unusual in many aspects. The appellee bought from Madison-Smith , Cadillac Company, in Little Rock, a LaSalle sedan automobile, and paid therefor $3,055. This was on September 29, 1928. He alleged in ' his complaint that the steering mechanism upon this car was in bad condition from the time of the purchase until MaY 3, 1930, when the car was.wrecked, said wreck having been caused bY the defective steering gear. During the period prior to the wreck the car had been returned to the repair shops of the Madison-Sinith Cadillac Company on several occasions, but repairs were never successful. The appellee made claims for damages, including doctor's bills , and other expenses for injuries suffered by the wife of the appellee at the time of the wreck.' After the said wreck, when the LaSalle automobile was returned' to the shop of the appellant for repairs, the estimated cost of such repairs was something aboVe $400. Shauman did not want to pay this price and did not authorize the repairs to be made. A few days later he made a 'propoSition in writing to the Madison-Smith Cadillac Company. His letter, dated June 4, 1930, is as follows : "Madison-Smith Cadillac Co., - "Little Rock, Arkansas. "Attention Mr. Madison. "Dear Mr. Madison: "Concerning our conversation . regarding the trade of my LaSalle sedan, I hereby confirm your proposition : You to take my car in trade for the Cadillac Fleetwood that you are now driving this coming September and I
92 MADISON-SMITH CADILLAC CO. 1). SHAUMAN. [192 to pay you a difference of $2,600. Your car to be in as good condition as of this date, natural wear excepted. You are to have immediate possession of my car to repair and sell and you to deliver your car at a. date agreed upon in September. I furthermore state that my car iS free from all indebtedness and no liens against sathe. "Thanking you very kindly for your consideration in this matter, I am, • "Very truly yours, [ Signed] "Harry E. Shauman." • The answer to this letter was by Mr. Madison, individually, and is as follows : "Little Rock, Ark., "June 7, ft - "Mr. H. E. Shauman, "N..0. Nelson Mfg. Co., "Little Rock, Arkansas. "Dear Mr. Shauman : "I am in receipt of your letter of the 4th confirming purchase of my Fleetwood Cadillac Sedanette, as follows : I to take delivery of your LaSalle at once, and to deliver to you my car in September, 1930. You to pay me a difference of $2,600. I am to deliver you my car at that time in same condition as of this date, with the exception of natural wear on average mileage in the meantime. "Yours very truly,. "A. F. Madison (Signed) "A. F. Madison. "P. S. Might advise that I am just advised by Cadil-lac Motor Car Company that they are shipping me the new improved radio which I will install on this car upon receipt." One of the controversies in this suit is that the Madi-son Cadillac Company, formerly Madison-Smith Cadil-lac Company, was not a party to the contract as evidenced by these letters, but that the contract was one between Mr. Shauman and Mr. Madison only ; that Mr. Madison, as an individual, accepted the offer of Mr. Shau-
ARK.] MADISON-SMITH CADILLAC CO. v. SHATJMAN. •93 man, and became bound thereby to the .exclusion of -the corporation. . The view . we have of this suit, however, makes it iMmaterial whether the suit should have been againSt the corporation or the individual. • This was an exchange or' barter of one automobile for another, the difference in values being evidenced by the agreed consideration of $2,600, to be paid by Shau-man at the time he . was to take over the Fleetwood Cadil-lac car in September. There• was no agreement .about the value of either one of the. cars set out in tbis contract. There was, however, an agreement to the effect that the Fleetwood car was worth . $2,600 more than -the LaSalle car. That is • certain arid definite. Upon the trial of the cause the suit proceeded upon a :theory that the appellee was • the purchaser of the . Fleetwood car ; that he was paying therefor by the delivery of the LaSalle car and by. the settlement of the claim he alleged he bad against the defendants for WO for damages and by the further payment of $2,600, to be made in September. In the development of the case no effo'rt was attempted as an explanation of the alleged damage- claim, except that Shauman makes it clear he intended: a settlement of the matter in the contract. If so, it 4as an unnoted consideration. . In September: Shauman says that hiS financial . condition and status had' changed, and that . he was• to proceed with his cOntract and pay the $2,600 according to 'agreement and to accept delivery of the Fleetwood Cadillac. car. This is • the only reason given for _the failure to perform the contract. The Fleetwood •Cadillac car Was ready for delivery, and • the evidence is undi g -puted that Mr: Madison called Shauman on two or three occasions desiring to make delivery, which was 'refused ; that Mr. Galloway, a salesman of the Madison-Cadillac Company approached Mr. Shauman on one or :two. occasions in an effort to deliver. Shauman refused and would not pay the $2,600. The car was kept for him until . Jan-nary 22, 1931. -At that time the Fleetwood Cadillac car was sold or traded for $950 in cash and two Buick cars:
94 MADISON-SMITH CADILLAC CO. v. SHAUMAN. .[192 There was realized from the two Buick cars $940, making a total received for the Fleetwood car of $1,890. Prior to this time the LaSalle car had been repaired and waS sold for $1,141. $417.39. had been spent in repairs on the LaSalle car, so the net amount received for it was $723.61, which; added to the $1,890, for which the Fleet-wood car *was sold, made a total of $2,613.61 that. was received for the FleetWood Cadillac car. • On April 11, 1932, Mr. Shauman wrote Mr. Madison a letter calling attention to a letterwritten on a previous date, April 2d, in regard to the credits for the LaSalle car. In response to this letter,. by Mr. Shatiman,.on April 11, Mr. Madison, answering, called attention . to Shauman's letter of June 4, 1930, the Contract letter, and also called attention to the fact that the trade was made between the two parties as individuals. , He further said: "The writer held the car for you .. until the specified time and then held. it some- little time longer, trying to give yca-t a chance to carry out the agreement." " The writer lost considerable more Money by holding the car than he realized out of the wrecked • car which you turned in." • • These two letters shoW the attitude of the parties at that time. Shauman thought that he was Rising to6 much, although he had breached the contract hiniself,. and, accordingly he filed suit, as he contends, not on account of his breach of the contract, but to protect himself against the extreme .. penalty or lOsses which he says he suffered by. reason of the fact that . the appellants had refused to account to : him for any part of the contract price that he had paid by trade of the LaSalle ear and settlement of his dontroversy for damages on account of injuries alleged to have been suffered. He had • settled his claim for damages, arid delivered his LaSalle 'sedan, but had nothing in return. • The theory of the defense is that, after the appellee had breached the contract, he. wa..§ the author of his own misfortunes . and was not entitled to any accounting for any part of the consideration paid or traded on the purchase of the . car he refused to accept. •
ARIC] MADISON-SMITH : CADILLAC SHATIMAN. 95. Conflicting . - evidence was offered tending : to show. the:market value of the two cars, the Fleetwood Cadillac and the LaSalle, at and prior to the time of the breach-of the contract, and also some evidence was.offered tending to • show the market value of ,the Fleetwood car at the tim it was• sold. Among other items of proof in. regard, to • the value . . of the Fleetwood-Cadillac car, the fact was developed that, afte . r it had been kept in, the hope of delivery- to Shaman, a new model had been put . upon the 'market, •which rendered the Fleetwood car an out-of-date model and very materially , reduced in market. value. . , • . : . Shauman contends that,:upon his 'breach .or ,failure tO- accept the Fleetwood Cadillac . car, ..the defendants, after 'notice .to .him, .should• have advertised or sold. the car .at public :sale.and accounted: to him for the . pur chase price :thereof ; that,: failing to do so, they must .ae-count to him for the-. market:yalue , at the time of. the breach, and he argues:.that • the jury, upon . the .trial of this case, must-have . foUnd the :market 'value to..be at, least $3,100, from whicb, he, argues, was-.subtracted the amount . of his debt or obligation,- :$2,600, 'leaving, a ver-. diet of $500, the amount for whiCh. judgment . was:•rendered in his • favor. . . This argument, made -to sust • ain this :verdict, ,is tremely adroit, but not convincing. On account of. contradictory . instructions; submitting .this case to; ,the jury, the: verdict is . .not . conclusive as a,finding of s any facts. To determine the rights ;of fhe,parties,in this controversy, we attempt an analysis of ,the material.part of the record before us, , . • If we treat the subject of this controversy, as the parties did upon the trial, as a contract for the sale of the Fleetwood Cadillac car to Shauman, for the delivery of the LaSalle car, and payment of 'the $2,600, it is necessary that we discuss the , written contract between the parties. This contract was not •an executed contract. Shauman did not: have- title•or possesSion actually or constructively.. The LaSalle car and the settlement of' Shall: man.'s claim for damages, for someundetermiiied amount, was a c `down payment." ..There was a balance owing of
96 [192 $2,600. This was to be paid in September, then only was delivery contemplated . So the . contract was executory. See distinction between executed and executory contracts. 1.3 C. J., p. 245, § 11 ; 6 R. C. L., p. 590. Shauman, in his letter, the contract, to the defendants, refers to the Fleetwood car as . "your car," possession of which defendants were entitled to have until he had performed the contract upon his part by the payment of $2,600. There was never a time from the date that letter was written and offer accepted until the present time that Shauman could have rightfully gotten possession of that car, except by full compliance of his agreement to pay the $2;600: The defendants were not mere bailees, or trustees, nor did they occupy-the relative position of a mortgagee in possession. Whether the breach arose out of . a wilful refusal to perform or actual inability, can make no difference. No enlarged rights or remedies arise because misfortune had overtaken him. He admits his breach; alsO that defendants were not in. default. Plaintiff therefore cannot maintain his suit. Harris• Lumber Company v. Wheeler Lumber Co., 88 Ark. 491, 115 S. W. 168; Berman v. Shelby, 93 Ark. 472, 125 S. W. 124 ; Mo. Pac. Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943; Kirchman v. Tuffli Bros. Pig Iron & Coke Co., 92 Ark. 111, 122 S. W. 239. Since there was no delivery of the Fleetwood .car, plaintiff did not have • any• property therein; so long as the contract was executory, his property lay in the contract. Its validity or enforceability was not questioned. The court erred in refusing to direct a verdict for defendants. Judgment is reversed, and cause dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.