CIT Corp. v. Nielson Logging Co.

• Court: Court of Appeals of Oregon
• Writing for the Court: Before JOSEPH; YOUNG
• Citation: 706 P.2d 967,75 Or.App. 267
• Parties: , 41 UCC Rep.Serv. 1539 CIT CORPORATION, a New York corporation, Appellant, v. NIELSON LOGGING CO., a partnership, Edwin J. Nielson and Aletha C. Nielson, Respondents. 16-82-05987; CA A31470.
• Decision Date: 08 November 1985

Page 967

706 P.2d 967 75 Or.App. 267, 41 UCC Rep.Serv. 1539 CIT CORPORATION, a New York corporation, Appellant,
v.
NIELSON LOGGING CO., a partnership, Edwin J. Nielson and
Aletha C. Nielson, Respondents. 16-82-05987; CA A31470. Court of Appeals of Oregon. Argued and Submitted March 8, 1985.
Decided Sept. 18, 1985.
Reconsideration Denied Nov. 8, 1985.

[75 Or.App. 268] William H. Martin, Eugene, argued the cause for appellant. With him on the briefs were Gleaves, Swearingen, Larsen and Potter, Eugene.

F. William Honsowetz, Eugene, argued the cause for respondents. With him on the brief were John Mark, and Mills, Lombard, Gardner, Honsowetz, Brewer and Schons, Eugene.

Before JOSEPH, C.J., and VAN HOOMISSEN and YOUNG, JJ.

[75 Or.App. 269] YOUNG, Judge.

This action concerns the resale of collateral after defendants' default on a security agreement. ORS 79.5040. Plaintiff sought a deficiency judgment for the difference between the debt, plus personal property taxes and expenses incurred in retaking and reselling the collateral, and the proceeds obtained from the sale of the collateral. Defendants denied the debt and affirmatively alleged that the sale of the collateral was commercially unreasonable. ORS 79.5070.

The jury returned a verdict for plaintiff in the amount of $8,393.03. The trial judge determined that the jury's answers to the interrogatories in the special verdict form were inconsistent with its general verdict and entered judgment for defendants. ORCP 61 C. We conclude that the verdict form is consistent and reinstate the verdict.

Nielson Logging is a partnership consisting of defendants Nielson. In February, 1980, defendants purchased a hydraulic log

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loader. The purchase was financed. Plaintiff took a security interest in the log loader and in defendants' tractor. The security agreement provided that, in case of default, defendants would be liable to plaintiff for any deficiency remaining on the debt after a disposition sale and for reasonable attorney fees.

Defendants had difficulty making the payments. In April, 1982, they were in default, having failed to pay the monthly installments and personal property taxes assessed against the equipment. In May, plaintiff repossessed the log loader and the tractor. In June, the equipment was sold to plaintiff at a public auction.

After the sale, plaintiff continued to seek buyers for the equipment. It sold the tractor for $28,000 and the log loader for $167,500. Both amounts were credited to defendants' account. Demand was made on defendants to pay the deficiency. They refused, and this action followed. The jury returned a special verdict, which was received by the court without objection, and the jury was discharged. Defendants then filed a "Motion for Judgment N.O.V. and for Judgment in Accordance With Interrogatories Inconsistent With the General Verdict." The trial court granted defendants' motion [75 Or.App. 270] and, pursuant to ORCP 61 C, ¹ entered a verdict in defendants' favor.

Plaintiff makes three assignments of error; we need decide only the first, which contends, inter alia, that the jury's verdict complied with the special verdict form and applicable law. The special verdict provided:

"1. After repossession, but before making any adjustment for expenses of resale of the equipment, what amount, if any, do you find was owing from Defendants to Plaintiff?

"$224,402.40

"2. Do you find that the Plaintiff incurred any reasonable expenses in retaking, holding, preparing and advertising the equipment for sale?

" X YES

" NO

"If your answer is YES, state the amount of such expenses:

"$1,587.88

"3. Do you find that Plaintiff incurred any expenses for personal property taxes in connection with the equipment?

" X YES as stipulated

" NO

"If you answer YES, state the amount of such expense:

"$6,805.15 as stipulated

"4. Add the amounts in questions 1, 2 and 3 and write the answer here:

"$232.795.43

[75 Or.App. 271] "5. What amount did Plaintiff derive from the sale of the equipment?

"$195,500.00

"6. Subtract the amount in question 5 from the amount in question 4 and write the answer here:

"37,295.43

"7. Do you find that CIT's sale of the equipment after repossession was commercially reasonable?

" YES

" X NO

"If your answer to...