Farmers Equipment Co. v. Miller

• Decision Date: 17 July 1972
• Docket Number: No. 5--5835,5--5835
• Citation: 482 S.W.2d 805,252 Ark. 1092
• Parties: , 11 UCC Rep.Serv. 388 FARMERS EQUIPMENT COMPANY, a Corporation, Appellant, v. John MILLER, Jr. and Malcolm Miller, Appellees.
• Court: Arkansas Supreme Court

Page 805

482 S.W.2d 805

252 Ark. 1092, 11 UCC Rep.Serv. 388

FARMERS EQUIPMENT COMPANY, a Corporation, Appellant, v. John MILLER, Jr. and Malcolm Miller, Appellees.

No. 5--5835.

Supreme Court of Arkansas.

July 17, 1972.

Hout, Thaxton & Hout by Dean A. Garrett, Newport, for appellant.

No brief filed for appellees.

FOGLEMAN, Justice.

The plaintiff-appellant, Farmers Equipment Company, sold a crawler tractor with dozer blade to the defendant-appellees, John Miller, Jr., and Malcolm Miller, his father, for the sum of $11,000 to be paid in installments, and Farmers retained a security interest in the equipment. Upon default by the Millers, Farmers repossessed the equipment and sold it for $1,800 at public sale. Farmers applied the $1,800 less expenses on the $6,582.77 balance still owed by the Millers and brought suit against the Millers in the Izard County Circuit Court for the deficiency in the amount of $4,782.77.

Appellees defended upon the ground that the disposition of the collateral was not commercially reasonable as required by the Uniform Commercial Code and that appellant did not proceed in good faith.

A jury trial resulted in a judgment in favor of the Millers and on appeal to this court appellant relies on the following points:

The trial court erred in allowing the testimony of Travis Grissom, witness for appellees, as to the market value of appellees' dozer.

The trial court erred in allowing Harliss Reeves, witness for appellees, to testify as to an alleged conversation with a person in authority at appellant's place of business.

The trial court erred in failing to direct a verdict in favor of appellant at the close of the evidence and in overruling appellant's motion for judgment notwithstanding the verdict.

The verdict is not sustained by sufficient evidence, and/or is contrary to law and appellant's motion for a new trial should have been granted.

We find no reversible error.

Appellees sought to show the value of the bulldozer through the testimony of Travis Grissom. Appellant objected to Grissom's opinion of the market value of the machine on the basis that the proper foundation was not laid by a showing that Grissom had an adequate knowledge of values. Grissom started working with heavy equipment during his service with the army engineers during the years 1953 to 1955 and had operated this kind of equipment ever since. He was employed by John Miller, Jr., as a bulldozer operator about February 1966. He actually operated the machine involved here until the day it was repossessed, so he was very familiar with it. He stated that it was then in good condition, except for the tracks and sprockets and left side armor. He claimed to have knowledge of the market value of a bulldozer of the type involved on the date of repossession, based upon what was said when he went with others shopping for this kind of machinery and from his own knowledge of what others had to pay for equipment on various jobs. The determination whether a nonexpert witness has sufficient knowledge of the matter in question or has sufficient opportunity for observation to be qualified to state an opinion lies largely within the sound judicial discretion of the trial judge and is not reviewable on appeal unless so clearly erroneous as to manifest an abuse of discretion, even though we might have decided differently if the question had been presented to us in the first instance. Lee v. Crittenden County, 216 Ark. 480, 226 S.W.2d 79. Firemen's Ins. Co. v. Little, 189 Ark. 640, 74 S.W.2d 777. The same principles apply to market value witnesses. Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S.W.2d 705; Housing Authority of City of Little Rock v. Winston, 226 Ark. 1037, 295 S.W.2d 621; Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440.

Even though the evidence of qualifications of the witness may now seem meager, we are unable to say that the circuit judge abused his discretion in admitting this testimony. We do not consider Little Rock & Ft. Smith Ry. Co. v. Alister, 62 Ark. 1, 34 S.W. 82, relied upon by appellant to indicate a different result. There it was clearly demonstrated that there was no basis for the opinion of a witness of the estimated cost of certain excavation work. He testified, on cross-examination, that he had never done any such work, either as a laborer or contractor and that what he stated as the price was only guesswork. We cannot say that it was unreasonable for the trial court to accept the statement of one, who had operated equipment of the type involved for over 15 years, that he had been sufficiently exposed to information about the selling price of equipment of that type to possess knowledge of its market value.

We cannot say that there was error in the admission of the testimony of Reeves. Appellant's objection was that the testimony of Reeves, as to statements made by a person he could not specifically identify, was hearsay, and the appellant was deprived of the opportunity to cross-examine the person making the statements.

Reeves was foreman on the job from which the bulldozer was repossessed and had driven it on occasion. At the time of the trial, he was operating a similar type tractor he had purchased. He stated that he had shopped around a great deal before making the purchase, and had attempted to buy the Miller 'dozer' from appellant at Newport about a week or 10 days after the repossession. Miller had informed him that the unpaid balance owed was something over $6,000. According to Reeves, he went to appellant's place of business where he was told by someone whose name he could not remember, but who he thought 'was the main guy in the company' at the time, that it would take $8,750 to buy the bulldozer. Reeves said that when the protested that this was too much, this same person said 'We will sell it to somebody,' and Reeves then offered to leave his name, address and telephone number so that he could be called whenever the company got ready to sell the equipment, but did not offer a specific sum for the tractor. Reeves testified that this person said, 'I don't give a damn if we don't get $2,000 on it, we'll get out money' and that he had 'two guys' on the note.

After appellant's initial objection, Reeves responded in the affirmative to a question whether the person making these statements was in charge of Farmers Equipment Company and was negotiating with Reeves when he was trying to purchase the equipment. Reeves further identified the speaker as 'top guy there that day,' 'a medium sized guy' with 'sort of brown' hair. Reeves claimed that the conversation lasted about five minutes and that it took place in this man's office. When asked if the person showed him any papers, he responded 'I think he thumbed through some papers and came up with a price, but I am not sure about that.'

We find no similarity between this testimony and that held inadmissible in Taylor v. Samuel, 238 Ark. 70, 378 S.W.2d 200, relied upon by appellant. There, an attempt was made to prove the agency of two unidentified individuals making delivery of lumber by the statements of these individuals to the witness at the time of the delivery that they were making delivery for the alleged principal. That testimony was clearly hearsay and inadmissible as evidence of the agency.

The real question involved here is whether the witness sufficiently identified the person with whom he talked about buying the bulldozer to give rise to an inference that that person was an agent of the company with authority to speak upon the subject. Although the details of the...