Babbitt Bros. Trading Co. v. Steinfeld

• Decision Date: 19 June 1925
• Docket Number: Civil 2337
• Citation: 28 Ariz. 403,237 P. 186
• Parties: BABBITT BROTHERS TRADING COMPANY, a Corporation, Appellant, v. HAROLD STEINFELD, Appellee
• Court: Arizona Supreme Court

237 P. 186

28 Ariz. 403

BABBITT BROTHERS TRADING COMPANY, a Corporation, Appellant, v. HAROLD STEINFELD, Appellee

Civil No. 2337

Supreme Court of Arizona

June 19, 1925

APPEAL from a judgment of the Superior Court of the County of Pima. George R. Darnell, Judge. Judgment reversed and cause remanded with directions.

Mr James R. Dunseath, for Appellant.

Mr Charles Blenman, for Appellee.

OPINION

ROSS, J.

Babbitt Brothers Trading Company brought suit against Harold Steinfeld for a balance of $629.65 for work and labor performed, and for goods and materials furnished defendant at his special instance and request, for repairs on an automobile. Defendant interposed the general issue and further pleaded that, before the complaint was filed, he delivered to plaintiff, and plaintiff received and accepted $300 in full satisfaction and discharge of its claim. The case was tried by the court without a jury and the court without making findings of fact or conclusions of law, rendered judgment for defendant. On this appeal we are therefore at sea to know whether the court decided the case on the general issue or upon the plea of accord and satisfaction. But if there is substantial evidence to support either, under the well-established rule, we will not disturb the decision.

The evidence is undisputed that on February 2, 1923, the plaintiff, who is in the automobile business at Tucson, and defendant, a resident of such city, made a trade by the terms of which plaintiff traded to defendant a new Cadillac car for a used Cadillac car (phaeton type), a Cadillac speedster, and $300 cash. In other words, it is undisputed that defendant, under the contract, was to pay plaintiff for a new car the two used cars and $300 cash. The controversy is over some work and material done and furnished by plaintiff in repairing the used car, designated herein as the speedster. It seems that in July, 1922, this car or the body of it, was destroyed by fire. The chassis was taken to plaintiff's place of business in October or November, 1922, to be sold and, in its condition only $50 was offered for it by the junkman. Upon the suggestion of the plaintiff, to which defendant consented, it was proposed that the chassis be repaired and made into a speedster, which was done at an expense of $726.39. The evidence as to whether plaintiff did the repairing of chassis, at the request of defendant, should perhaps be stated so that it may be seen that, while there is some controversy as to what or how much should be done by way of repairs, there was no disputing that defendant gave his consent to have it repaired. Defendant testified:

"I believe it was Mr. Babbitt with whom I had a conversation with reference to the doing of the work, if any person.

"I afterwards bought a new car from the Babbitt Brothers, and this chassis was a part of the trade, after the repairs or after some work had been done on it by the Babbitt Brothers.

"We agreed on an allowance of approximately a thousand dollars as an allowance on that particular machine, in our trade. . . .

"I was talking to Dave Babbitt, and I asked him if he would have somebody in his organization look over that Cadillac limousine that had been through the fire and see what could be done about turning it into some money. So he sent Mr. Melluish down to look at the car, and they suggested that they would have the care hauled up from my garage to their quarters on Stone avenue and look the car over, which they did. . . . Mr. Melluish said: 'yes, if the heat hasn't damaged the car any, mechanical end of it, I think myself you ought to be able to sell that car to good advantage.' He said, 'I will tell you what I am going to do.' He says, 'The university is just opening, and there is quite a demand out there for cars, students who want roadsters; that is, sporty looking roadsters, Without spending much money on this car, I am going to put on a couple of jump seats and make it into a sporty little roadster. It won't cost much money to do that, and throw a coat of paint on it, and we will sell it.' I says, 'How much can you get for it?' 'Well,' he says, 'I think I can get you somewheres aroun $1,000 for that car.' . . . I says, 'All right; put these jump seats on that you are talking about.' I says, 'What will they come to, approximately?' So he gave a price that the whole work would come to of about one hundred fifty dollars. The next time I saw the car it was completed and Mr. Melluish was running around in the car. I never authorized him to do any work on the car whatsoever. I never told him to spend any particular amount, any money at all on the car. The only conversation we had as to the price was a matter simply of taking off that old burned limousine body and putting those jump seats on. That is all I understood he was going to do. That is all our conversation was about. . . .

"I did agree with Melluish that he could go ahead and put some old bodies on there, a couple of jump seats he was to put on there. After the jump seats had been put on I rode in the car. I saw it."

The plaintiff's manager, David Babbitt, testified on that question:

"Finally, Mr. Steinfeld purchased a car outright and requested me to try to dispose of this chassis. We tried for some time. We were offered, I think, as high as $50 from the junkman for it, and finally I think it was at the suggestion of my used car man, I went to Harold and suggested that we rewire the motor, work the car over, put a body on it and make it a salable article, make a salable article of the car; that we sell it, and any profit derived from the sale would go to Mr. Steinfeld as a credit. And we went ahead and fixed up the car."

Under this state of evidence, it cannot be successfully contended that plaintiff did the work of repair without authority from defendant. The work and material may have cost more than defendant expected or authorized, but he has not, in his testimony or otherwise, contended that the charge was unreasonable. After the chassis had been repaired and made into a speedster, the trade above mentioned was made, and in such trade the speedster was estimated by the plaintiff to be of the value of $850. It seems at the time of the trade no bill had been rendered defendant for repairs, and nothing was said as to repairs at that time. Later plaintiff rendered bill for...