Bonebrake v. Cox

• Decision Date: 02 July 1974
• Docket Number: No. 73-1730.,73-1730.
• Citation: 499 F.2d 951
• Parties: Frances M. BONEBRAKE, Administratrix De Bonis Non of the Estate of Woodrow B. Simek, Deceased, Plaintiff-Appellee, v. Donald COX and Claude Cox, d/b/a Tamarack Bowl, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.2d 951 (1974)

Frances M. BONEBRAKE, Administratrix De Bonis Non of the Estate of Woodrow B. Simek, Deceased, Plaintiff-Appellee, v. Donald COX and Claude Cox, d/b/a Tamarack Bowl, Defendants-Appellants.

No. 73-1730.

United States Court of Appeals, Eighth Circuit.

Submitted April 15, 1974.

Decided July 2, 1974.

Dennis M. Gray, Council Bluffs, Iowa, for defendants-appellants.

Robert J. Laubenthal, Council Bluffs, Iowa, for plaintiff-appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH,^* Senior District Judge.

TALBOT SMITH, Senior District Judge.

This is an appeal from a judgment of $27,000 entered by the District Court on the recommendation of a Special Master in favor of the plaintiff, Frances M. Bonebrake, administratrix of the estate of Woodrow B. Simek (the seller), against the defendants, Donald and Claude Cox, d/b/a Tamarack Bowl (the buyers).

Plaintiff's decedent had entered into two contracts with the Cox brothers for the sale and installation in defendants' bowling alley of bowling equipment. The dispute arose when Simek died. At that time the delivery and installation were incomplete and less than half of the purchase price paid. The defendants obtained equipment elsewhere and hired others to finish the installation. Plaintiff's suit to recover the balance of the contract price was met by defendants' counterclaims for damages suffered. The Special Master rejected defendants' counterclaims and their defense that Simek or his estate had breached the contracts first, and awarded plaintiff the balance due on the contracts ($28,000) less the value to the seller of unaccepted goods ($1,000).

The harshness of the result is conceded by the Special Master,¹ but he felt himself constrained to such result by the provisions of the Uniform Commercial Code (the "Code").² It is indeed harsh that the defendants be required to pay the full contract price for the goods, and be denied in toto their counterclaim for damages arising from their grossly defective condition. We are satisfied that the Code mandates no such result and that it has been misconstrued. Moreover, we are of the opinion with respect to an implied holding on a combined question of fact and law (anticipatory breach by Simek's estate) that although there is some evidence to support the ruling, on the entire record we are "left with the definite and firm conviction that a mistake has been committed" and thus we are confronted with clear error.³ We reverse and remand.

In view of the fact that the application of the Code to the facts presented is essential to the resolution of the controlling issues on appeal we will describe the transaction before us in some detail.

The Cox brothers had for some 20 years run a bowling alley called the Tamarack Bowl in Missouri Valley, Iowa when, on February 5, 1968 it was gutted by fire. They determined to rebuild, and on April 17, 1968 entered into a written contract with Simek for the purchase of:

the following used equipment hereinafter set forth, installed in the Tamarack Bowl, on the ground floor, in Missouri Valley, Iowa.

10 Lane beds complete with one piece gutter, tail planks, kickbacks, etc 5 Magic circle underlane ball returns 10 Score chairs Fibre glass seating (for 10 lanes) 1 Streamline bubble ball cleaning machine 50 Lockers—5 Radarays 63 Assorted house balls 3 Ball storage racks 50 Pair rental shoes Foundation material For the total price of $20,000.00.

* * * * * *

Simek will start construction work on or about May 15th, 1968 and further agrees to re-surface the lanes, and apply finish coats.

Simek's principal place of business was in Ashland, Nebraska. He was the sole proprietor of a bowling alley and dealt in new and used bowling equipment. He owned storage facilities in Ashland, Mead and Greenwood, Nebraska. Simek hired one Ilert Avery, commonly known as "Blackie", to install all the listed items except the balls and shoes. The first and principal job was to put the lanes in, but this was not begun until August, 1968, because the building had not yet been completed.

On August 23, 1968 the Cox brothers further contracted with Simek to purchase, for $35,000.00,

10 used Brunswick Model A pinspotters delivered and installed in the Tamarack Bowl, with motors and gear boxes carrying a one year guarantee.

No date was specified for the completion of either contract although it is clear that the Cox brothers were under considerable time pressure to have the deliveries and work under the contracts completed. Their sources of steady revenue were the local bowling leagues which, after the fire, had taken their business elsewhere. These leagues were organized under the rules of the American Bowling Congress and the Women's International Bowling Congress which call for the playing of four "rounds" of bowling over a thirty-six week schedule. Traditionally, league play at the Tamarack Bowl and other alleys begins in late August or early September in order to be completed before the summer months. The "volunteers" who are mentioned below were local league members who were anxious to see that the Bowl open in time for the fall season.

Simek hired Blackie to unload the machines and set them in place at the end of the lanes. On September 4 this work was complete, but, the Special Master found, the pinspotters had not been "installed" within the meaning of the contract. They were "not only inoperative, but were in a very poor condition." Donald Cox testified that when he first saw the machines at the end of the lanes "they were kind of a mess. * * * On every machine pretty near every bearing was froze or had to have some attention or a lot of replacement parts. Lots of them." With the help of volunteers and advice from Blackie repair work was immediately begun; the machines were dismantled and parts cleaned or replaced. Blackie was clearly aware of the Cox brothers' dissatisfaction with the machines, but Simek died September 6 before they could communicate directly with him. Twenty thousand dollars had been paid on the pinspotter contract.

With respect to the first contract, the Master found the following goods to be undelivered as of September 6:

1. 10 Score chairs

2. Fiberglass seating for 10 lanes

3. Streamline Bubble Ball Cleaning Machine

4. 50 Lockers

5. 63 Assorted house balls

6. 3 Ball storage racks

7. 50 Pair of rental shoes

The lane beds had been installed, and the ball returns and "radarays" called for in the contract were delivered but not installed. Seven thousand dollars had been paid on this contract. With the help of Blackie, the Cox brothers immediately attempted to locate, and identify to the contract, the undelivered goods. These efforts will be discussed in more detail under our consideration of the buyers' claim of anticipatory breach.

Meanwhile, the effort to repair the concededly defective pinspotters continued. About September 12 an altercation developed with Blackie who left the job. A number of bowling equipment specialists were immediately called in to complete the repair work and to finish the installation of the ball returns and the "radarays".⁴ The defendants contacted a lawyer who drafted the following letter to plaintiff:⁵

September 17, 1968 Mrs. Frances Bonebrake Ashland, Nebraska Dear Madam:

We represent Claude and Donald Cox, owners of the Tamarack Bowl in Missouri Valley who entered into a contract with your brother, Woodrow Simek for the purchase and installation of ten alleys complete and ten automatic pinsetters installed and complete.

At the time of Mr. Simek\'s death he was engaged in the installation of said items and had the installation over half completed. Following his death the employees which were assisting in the installation left the job, and it was necessary for the Cox brothers to look elsewhere for the additional parts and supplies which had not been delivered, and to commence work on completing the installation of the alleys and pinsetters with such other help as they were able to obtain.

They are gradually locating and obtaining the necessary parts for repairing the pinsetters and are getting them installed, although this is going to result in a considerable delay beyond the date of completion, and which will, of course delay the commencing of the bowling season. It may result in requiring them to have shorter league seasons which will result in a substantial loss of income.

Mr. Donald Cox has recently talked with you about this and he told us that an Administrator has or will be appointed for his estate in Ashland, Nebraska.

The Cox brothers had paid Mr. Simek $27,500.00 at the time of his death on a total contract price of $55,000.00 covering the cost of the alleys and pinsetting equipment and the installation which included a guarantee as to the quality and performance of the equipment.

They hope to be able to complete the installation at a cost not greater than the contract price, but they will nevertheless no doubt sustain substantial loss caused by the delay and lateness in starting the bowling season.

The Cox brothers are greatly concerned about this, and among other things they are concerned about whether or not all of the equipment which has been delivered and partially installed had been paid for by Mr. Simek prior to his death.

Our clients are keeping an accurate record of all payments which have been made by them, or which are now being made by them in paying the cost of completing the installation, so that they can substantiate a claim for any loss which may be sustained. We wish to be advised as to what action has been taken concerning the probate of the estate of Mr. Simek, and the name of the attorney who will be taking care of this matter for you, and we would suggest that this letter be handed such attorney so that he will be aware of the position of our clients.

Very truly yours ACREA & PEARSON K. C. Acrea KCA/mas

Work proceeded on the job under the direction of the Cox brothers, the Bowl...