670 F.2d 802 (8th Cir. 1982), 81-1385, Charles Schmitt & Co. v. Barrett

• Docket Nº: 81-1385.
• Citation: 670 F.2d 802
• Party Name: CHARLES SCHMITT & CO., Appellee, v. Thomas E. BARRETT, III, Appellant.
• Case Date: February 22, 1982
• Court: United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 802

670 F.2d 802 (8th Cir. 1982)

CHARLES SCHMITT & CO., Appellee,

v.

Thomas E. BARRETT, III, Appellant.

No. 81-1385.

United States Court of Appeals, Eighth Circuit

February 22, 1982

Submitted Nov. 11, 1981.

Page 803

Lashly, Caruthers, Thies, Rava & Hamel, P. C., Richard D. Watters, argued, St. Louis, Mo., for appellant.

Law offices of Theodore F. Schwartz, Theodore F. Schwartz, argued, Barry S. Ginsburg, Clayton, Mo., for appellee.

Before HENLEY and ARNOLD, Circuit Judges, and NICHOL, ^[*] Senior District Judge.

NICHOL, Senior District Judge.

Plaintiff Charles Schmitt & Co. (Schmitt) brought this action against defendant Thomas E. Barrett, III, (Barrett) alleging breach of contract for the failure and refusal of Barrett to divide equally with Schmitt the proceeds from the sale of a group of special interest automobiles. The cause was tried before the court sitting without a jury, the Honorable Clyde S. Cahill, district judge, presiding. Barrett appeals from the district court judgment that rescinded the contract and awarded Schmitt $11,500. The district court decision is reported at 510 F.Supp. 726 (E.D.Mo.1981). For reasons set out more fully herein, we affirm the district court decision.

Schmitt is a Missouri corporation and has long been engaged in the business of buying and selling expensive, luxury automobiles. Charles Schmitt is the president of that corporation. Barrett is a nationally known dealer in antique and classic automobiles. He resides in Scottsdale, Arizona. Both parties are considered successful and experienced car dealers in their special areas of concentration. In fact, prior to this action, the parties had often done business with each other based upon informal handshake agreements and the parties considered each other as friends.

In early May, 1976, Ray Hummel, Schmitt's office manager, located a fleet of about 16 unregistered, low mileage Dodge and Plymouth cars manufactured between 1935 and 1957. Hummel arranged for the tentative purchase of this group of cars from one Larson, subject to inspection and approval by the company president. Hummel then called the company president and recommended purchase of the fleet. At that time, Schmitt was near Barrett's home in Arizona. Schmitt invited Barrett to inspect the cars with him. On May 5, 1976, a group, including Schmitt and Barrett, flew to Texas, inspected the automobiles and agreed orally to buy them and divide the profits after resale of the cars. Barrett gave Larson a cashier's check for $22,000 as a down payment. Schmitt claimed that Barrett loaned him the $22,000 and that he, Schmitt, made the down payment on the automobiles.

On May 7, 1976, all of the principals, including Barrett, met in St. Louis, Missouri, where Schmitt paid Larson $45,000. This payment was made by giving Larson two checks, one payable to Larson in the amount of $35,000, and the other payable to a Lincoln-Mercury automobile dealer in the amount of $10,000. The trial court found that the check made payable to the Lincoln-

Page 804

Mercury dealer was done so at the direction of Larson and that the total amount paid for the fleet of cars was $67,000. After Schmitt made payment, Larson transferred title to the automobiles to...