Belleville v. Davis

• Decision Date: 22 June 1972
• Citation: 498 P.2d 744,262 Or. 387
• Parties: Rex BELLEVILLE, Respondent, v. Marvin DAVIS, Appellant, and Robert N. Davis, Defendant.
• Court: Oregon Supreme Court

Page 744

498 P.2d 744

262 Or. 387

Rex BELLEVILLE, Respondent, v. Marvin DAVIS, Appellant and Robert N. Davis, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 4, 1972.

Decided June 22, 1972.

George M. Joseph, Portland, argued the cause for appellant. With him on the briefs were Bemis, Breathouwer & Joseph, Portland.

Frederick T. Smith, Portland, argued the cause for respondent. With him on the brief were Dusenbery, Martin, Bischoff & Templeton, and David P. Templeton, Portland.

TONGUE, Justice.

This is a suit for specific performance of a contract for the sale of a one-half interest in a Broadway Cab. The complaint also prayed for actual and punitive damages. The trial judge entered a decree of specific performance against both defendants and awarded $1,000 in punitive damages against defendant Marvin Davis, who is the sole appellant in this court.

The first and primary issue to be decided is whether, under the evidence, plaintiff was entitled to a decree of specific performance against defendant Marvin Davis. It thus becomes necessary to review the evidence.

Prior to June 1969 Marvin Davis was the owner of Broadway Cab No. 85, together with membership in Broadway Deluxe Cab Company, common stock in Broadway Cab Company and membership in the B. C. Mutual Benefit Association. 'Sometime in the latter part of June' Marvin entered into an oral agreement to sell all of these interests to his brother. The testimony is not clear as to the terms of that oral agreement as discussed and agreed upon at that time. There was testimony, however, that Robert agreed to pay $15,500 to Marvin, including payment of $1,000 as a down payment 'as quick as * * * he could.' Robert also agreed to pay Marvin's payment to 'the company,' in the sum of $100 per month, as due by Marvin to the company, plus some additional 'excess interest payment' to Marvin. ¹

There was some evidence, however, that at that time there was a 'standard form' of conditional sales contract for the sale by a Broadway Cab driver of his interest in his cab. There was also evidence that it was then understood that Robert could resell a half interest in the cab (the 'night half') and that, in such an event it was required that Marvin give his approval for such a sale.

Shortly after July 1, 1969, the cab required substantial repairs and then broke down completely, so as to require the purchase of a new cab in August 1969. ² Robert was then 'far in the hole' and had to 'do something.' By that time he had apparently been 'voted in' as a member of the company and association.

Robert then made an agreement to sell a one-half interest to plaintiff for the sum of $8,250 and an agreement that plaintiff could operate the cab on a 3 p.m. to 3 a.m. ('3 to 3') shift. On or about September 21, 1969, prior to the preparation of written contracts, the cab was turned over to plaintiff to operate on that shift.

In September, also prior to the written contracts, Robert reported the proposed arrangement to Marvin and testified that 'he said that (it) was fine, (but) that he didn't want it in writing.' There is also evidence, however, that although Marvin told Robert that plaintiff 'could work three to three, that's fine,' Marvin said that he 'wanted the shift from six to six.'

The agreement for the sale of the one-half interest by Robert to plaintiff was then reduced to writing in a contract prepared by Robert's attorney. That contract also specified that plaintiff was to have the right to operate the cab on a '3 to 3' shift. Robert's attorney also prepared a separate 'operating agreement' between Robert and plaintiff for shift hours on a '3 to 3' basis, as well as a written contract to confirm the previous sale by Marvin to Robert of Marvin's entire interest to Robert, to be dated as of July 1, 1969.

Robert and plaintiff then signed the agreement for sale of the one-half interest and the 'operating agreement,' both as of October 1, 1969. The agreement for sale by Marvin to Robert was not signed by Marvin, however. Neither did Marvin sign his 'approval' of the sale of the one-half interest by Robert to plaintiff in the space indicated in that agreement for his signature. It appears, however, that beginning on about September 21, 1969, and continuing for about two months plaintiff was not only permitted to operate a '3 to 3' night shift, but that during at least a part of that same period Marvin himself operated the day shift.

Plaintiff testified that in 'early November' (after the signing of the written contracts) Marvin returned the cab late one day and then asked plaintiff 'what hours Bob had sold me' and that about two weeks later Marvin said that Robert didn't have a right to sell a '3 to 3' shift, but to 'go ahead and operate it, but I won't put it in writing.' Robert also testified that Marvin told him that 'he didn't care what hours (plaintiff) worked * * * as long as it wasn't in writing on the contract.' Marvin testified that he objected to the '3 to 3' shift and wanted the '6 to 6' day shift, but that he didn't care whether Robert and plaintiff had made an agreement under which plaintiff was to operate a '3 to 3' shift 'as long as it was a verbal deal until my contract was satisfied' and he would be 'out of it.' He also admitted that he 'probably' told plaintiff that plaintiff could have any verbal agreement with Robert that he wanted.

Meanwhile, Robert had not paid to Marvin the $1,000 'down payment' and admitted that he had not paid anything to Marvin at the time of his sale of the one-half interest to plaintiff.

Plaintiff, however, paid to Robert $500 as 'earnest money' and also paid $700 as the balance of his 'down payment' of $1,200 after he was 'voted in' as a member, either in September or October. Robert used the $500 for repair bills and did not pay any part of that $1,200 to Marvin.

Under that agreement plaintiff also was to pay $100 per month as a monthly payment, plus interest. When plaintiff undertook the operation of the '3 to 3' shift, Marvin acted as his bookkeeper, to prepare his income and expense statements for operation of the cab. Marvin admitted that all of those monthly payments by plaintiff were applied on Marvin's account at the Broadway Taxicab Company. ³ Those payments were made by check from plaintiff to Robert and were endorsed by him so that they could be 'applied to Marvin's account.'

In December 1969, according to plaintiff's testimony, Marvin came to him and said he 'wasn't going to honor (my) contract; that he and Bob Davis had not signed any contract, and, therefore, I didn't own anything and he was going to see to it that I didn't get any 3 to 3 cab.' Plaintiff testified that Marvin also told him that Robert was falling behind in his payments and that until then plaintiff did not know that Robert was delinquent in such payments. Plaintiff had previously known, however, that Boert had bought the cab from Marvin.

The next thing that happened was that a meeting was arranged 'sometime in January or early February' by Marvin with Robert and plaintiff at the office of Marvin's attorney, Francis Harrington. Just what happened at that meeting does not appear, but Mr. Harrington then prepared a written contract for the sale of all of Marvin's interest in the cab to Robert for $15,500, effective as of July 1, 1969, as well as a promissory note for $650 from Robert to Marvin, with the first monthly payment of $50 due on April 10, 1970. ⁴ The contract and note were signed by Robert on March 10 or 11, 1970. The contract was also signed by Marvin.

About April 15, 1970, Mr. Harrington sent a letter to Robert, 'calling (his) attention to a default in the contract of March 11, 1970' and 'asking (him) to bring it current.' In addition, no payment had been made on the promissory note. Although plaintiff had made his monthly payments to Robert for each month, to and including April, Robert had not turned over the April payment to the company.

By letter dated April 23, 1970, Mr. Harrington sent to Robert a notice that Marvin had elected 'to declare the entire balance of the purchase price immediately due and payable' and that unless paid by 5:00 p.m. of the next day he would repossess the cab. Upon Robert's failure to pay, the cab, a 1969 Chevrolet 4-door sedan, was then repossessed. Since then the cab has been held by Marvin, but has not been sold on foreclosure so as to charge or credit any deficit or excess to either Robert or plaintiff.

On May 22, 1970, plaintiff filed a complaint for specific performance of his contract to purchase a one-half interest in the cab, naming both Robert and Marvin as defendants.

The pleadings and the evidence were sufficient to support the decree for specific performance.

After hearing and considering the foregoing evidence the trial judge made a finding of fact that the sale of the one-half interest in the cab by Robert to plaintiff 'was assented to by Marvin' with the result that Marvin became 'subject to' the terms of that agreement. The trial judge also found that the one-half ownership in the cab, with related rights of operating and membership, was 'unique' and that plaintiff was entitled to specific performance by both Robert and Marvin of plaintiff's contract for purchase of that one-half interest.

After reading the record we agree with these findings. We do so on the ground that the preponderance of the evidence is that Marvin not only had delivered possession of the cab to Robert and was not only informed by Robert of his proposed sale to plaintiff, but expressly assented to that sale. At that time Robert was delinquent in payments under his previous oral contract with Marvin. Although Marvin may have been disturbed by the fact that the sale of the one-half interest included the right to operate a '3 to 3' night shift, the preponderance of the evidence is that Marvin told both Robert and plaintiff that the sale was 'fine,' although he didn't want it in...