Babbitt v. Gordon, 5--5799

• Decision Date: 28 February 1972
• Docket Number: No. 5--5799,5--5799
• Citation: 476 S.W.2d 795,251 Ark. 1112
• Parties: W. H. BABBITT, Appellant, v. Bill GORDON, Appellee.
• Court: Arkansas Supreme Court

Page 795

476 S.W.2d 795

251 Ark. 1112

W. H. BABBITT, Appellant, v.Bill GORDON, Appellee.

No. 5--5799.

Supreme Court of Arkansas.

Feb. 28, 1972.

Spitzberg, Mitchell & Hays by Beresford L. Church, Jr., Little Rock, for appellant.

Virginia Atkinson, Little Rock, for appellee.

HOLT, Justice.

The appellee brought this action against the appellant to enforce payment of a $750 check representing the purchase price of a boat motor and accessories and to recover a $50 charge for modifying appellant's boat transom to fit the motor equipment.By answer the appellant denied the claim alleging that appellee installed the motor on appellant's boat without authority and in a negligent manner by failing to employ adequate and proper bolting devices, as well as failing to warn appellant's 16-year-old son that the motor was not securely installed which resulted in the motor being wrenched free and lost in the Arkansas River one day following the mounting of the motor when the boat and motor were being operated by appellant's son.Appellant counterclaimed for the purchase price of the motor; $140 which he had paid to a diver in an effort to retrieve the motor; and $50 for damages to his boat.The court, sitting as a jury, resolved the issues by awarding judgment against the appellant for the agreed $750 purchase price and dismissed appellant's counterclaim.

For reversal the appellant asserts that the trial court erred in holding that the appellee was 'merely the seller of an engine,' and that the loss of the motor was due to the negligence of appellant's minor son.Further, that if appellant's son were negligent, it was not imputable to appellant.Of course it is well settled that on appeal we review in the light most favorable to the appellee, the evidence and all reasonable inferences deducible therefrom and must affirm if there is any substantial evidence to support a jury's or trial court's findings.Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822(1968);American Metal Window Co. v. Watson, 238 Ark. 418, 382 S.W.2d 576(1964).

The evidence is undisputed that the appellant went to appellee's home, after a telephone conversation, and inspected the motor appellee had advertised for sale; that appellant later that day called appellee on the phone and offered him $650 which appellee refused because the motor was equipped with a hydraulic power lift; that the parties agreed upon the $750 purchase price; that later in the day appellant sent his 16-year-old son with instructions to get the motor equipment and deliver his personal check (payment was later stopped) to appellee and then take the motor to a local boat dealer for installation; that the motor had such accessories as controls and a hydraulic power lift, one-third of which was bolted or welded to the engine at the time of the sale as an integral part of the motor; that appellant's son appeared driving a camper truck pulling appellant's boat; and that it was then discovered that the motor unit would not fit appellant's boat.Appellee denied that he was aware of the type boat on which appellant intended to use the motor.The appellee adduced evidence that the youth became very concerned about the immediate use of the boat and after requesting the use of appellee's telephone the boy returned and stated that he had talked with his father(appellant) who told him 'to check with you (appellee) to see if you can help and what can be done.'It appears that appellant was leaving town for the weekend.At the insistence of appellant's son, the appellee, for an additional charge of $50, agreed to cut down the transom or the back of appellant's boat to accommodate the motor; 'hang' the motor on the boat, install certain controls and test fire the motor.It appears undisputed that it was specifically agreed that the appellee would not mount the hydraulic power lift or hook up the power steering apparatus.The appellee proceeded that evening and the next morning to cut the transom and mount the motor on the boat in accordance with this agreement.The engine, excluding the attached power lift, was tightly bolted on with two factory clamps and two bolts through the bottom legs of the engine and the transom.The unattached two-thirds part of the power lift was put in appellant's truck when the boy returned for the motor the next day (Saturday).Appellee testified that the engine was bolted down 'for travel on the boat' and warned appellant's son that the power lift was not installed and he would...