French v. Sotheby & Co.

• Decision Date: 07 April 1970
• Docket Number: 42917,Nos. 42213,42686,s. 42213
• Citation: 470 P.2d 318
• Parties: 7 UCC Rep.Serv. 685 Katherine Adams FRENCH, Plaintiff in Error, v. SOTHEBY & COMPANY, a Partnership, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 318

470 P.2d 318

7 UCC Rep.Serv. 685

Katherine Adams FRENCH, Plaintiff in Error, v. SOTHEBY & COMPANY, a Partnership, Defendant in Error.

Nos. 42213, 42686, 42917.

Supreme Court of Oklahoma.

April 7, 1970.

Rehearing Denied June 23, 1970.

Syllabus by the Court

1. Under the provisions of 12A, O.S.1961, Sec. 2--709, of the Uniform Commercial Code, actions for the price of goods are limited to those situations enumerated therein, being goods accepted or goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer, and goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.

2. Rules for the District Courts, rule 13, 12 O.S.Ann. C. 2 Appendix, permit rendition of a summary judgment if it appears that there is no substantial controversy as to any material fact and that any party is entitled to judgment as a matter of law, but there can be no trial of fact issues since the function of a motion for summary judgment is to determine whether there are any genuine issues as to material facts.

3. An accord and satisfaction, or a compromise agreement, in order to be available as a defense, must be specifically pleaded.

Appeal from the District Court of Carter County; Kenneth Shilling, Judge.

Action by Sotheby & Company against Katherine Adams French to recover price of goods allegedly purchased by defendant at plaintiff's auction. Defendant appeals (No. 42213) from order and judgment sustaining plaintiff's motion for summary judgment, and (No. 42686) from order denying defendant's petition for new trial, and (No. 42917) from order overruling defendant's objections to confirmation of sheriff's sale of her property. Reversed and remanded.

Earl Q. Gray, Ardmore, for plaintiff in error.

Fischl, Culp & McMillin, Ardmore, for defendant in error.

DAVISON, Justice.

The above numbered appeals are companion cases. They are separate appeals from a judgment and several orders entered by the trial court.

In No. 42213, Katherine Adams French (defendant below) appeals from a judgment rendered against her in favor of Sotheby & Co., (plaintiff below) for $24,886.27 and interest, when the trial court sustained plaintiff's motion for a summary judgment. Plaintiff Sotheby cross-appeals therein from an order granting defendant French additional time in which to appeal, after expiration of the time originally given for that purpose.

The appeal in No. 42686 is by the defendant French from a later order denying her petition for a new trial based on newly discovered evidence.

The appeal in No. 42917 is by the defendant French from a later order overruling her objections and confirming sheriff's sale of her real estate on execution issued on the money judgment.

The general proposition presented in No. 42213 is whether the trial court was justified in rendering a summary judgment. The particular issues are whether the pleadings and filings required a determination of a question of fact, and whether plaintiff had misconstrued its remedy by bringing an action for the balance of the price of merchandise instead of an action for damages.

Plaintiff is located in London, England. Defendant is a resident of Ardmore, Oklahoma, but was in Europe most of the time, where her children were in school.

Plaintiff's petition (filed July 19, 1965) and amendment thereto alleged that defendant was indebted to plaintiff on open account in the sum of $24,886.27 for merchandise purchased by defendant on March 22, 1965, and March 25, 1965. The attached statement of account stated Sotheby & Co. were Auctioneers of Works of Art in London, England, and showed that the merchandise consisted of eight ancient or antique guns bought (bid in) for 10,480 pounds, on which there had been credited on May 6, 1965, the amount of 1571 pounds, 2 shillings, and 3 pence, leaving a balance due of 8908 pounds, 17 shillings, and 9 pence. It was alleged that the value of the British pound at the time the debt was made was $2.7937. The defendant was personally served with summons in Ardmore, Carter County, Oklahoma.

Defendant, acting as her own attorney prepared and filed an answer alleging she had engaged a Mrs. Bowater of London, England, to buy guns at the plaintiff's auction (which Bowater did), but that the amount of the bill was so 'amazing' that she could not raise the money to pay the bill; that she complied with what she thought were the applicable auction laws permitting her to pay 15% And then to have the articles auctioned again; that a written condition of the auction sale (quoted) provided that upon default by a buyer the defaulter would make good any loss arising from the re-sale, with charges and expenses 'in respect to both' sales; and that plaintiff still had the merchandise and had returned her check for 15%, and since plaintiff had not re-sold the merchandise, she did not know how she could reimburse any loss arising from the sale.

Later, in November, 1965, the defendant wrote the Judge of the trial court twice from Europe stating her children were in school there and asking for a postponement of the case until she could return in July, 1966. Therein defendant again stated plaintiff had the merchandise and that she had sent plaintiff a check for 15% Which was returned.

In the meantime the trial court overruled plaintiff's demurrer to the answer and granted plaintiff permission to file a motion for summary judgment.

Defendant then engaged an attorney (other than her present attorney) who filed an answer for her, consisting of a general denial, a denial that she was indebted to plaintiff in the sum stated in the petition, a denial that she was indebted to plaintiff in any sum, and alleged that if she did purchase the goods that they were purchased upon conditions imposed by plaintiff whereby the goods would be resold if the conditions were not met, with the charges and expenses of both sales and any loss charged to defendant, and further alleged that she tendered to plaintiff a sum in excess of any expense of the sales and of any loss but that the tender was refused. Her answer alleged that plaintiff had kept possession of the merchandise and denied that the sum sued for was the proper measure of damages.

Plaintiff then filed a motion for summary judgment. Attached thereto in support of the motion was an affidavit of one of the partners of plaintiff identifying certain exhibits consisting of two checks and a number of letters given and written concerning the purchase of the guns at the auction held March 22 and 25, 1965. We construe these instruments and plaintiff's answers to defendant's interrogatories on their face to present the following circumstances: At some time prior to the auction sales the defendant delivered to Mrs. Bowater two signed checks drawn on her bank account in a bank in Wichita Falls, Texas. The checks were made payable to plaintiff and dated March 18, 1965, and March 16, 1965, with amounts left blank. Mrs. Bowater bid in the guns and the March 18 check was filled in for 10,480 pounds. This check was returned because of insufficient funds. The March 16 check was then filled in for '$4290.00,' and this check was returned at the request of defendant. On April 17, 1965, defendant wrote Mrs. Bowater from Germany stating in part, 'I cannot fly back just now, so enclosed is check to pay them 15% Commission and have them put the things up again * * *.' On April 22, 1965, Mrs. Bowater forwarded both the letter and the check to plaintiff. Plaintiff, on May 6, 1965, supra, credited the account with 1571 pounds, 2 shillings, and 3 pence, leaving the balance for which plaintiff sued and was given judgment.

The exhibits to plaintiff's affidavit reflect that plaintiff wrote a number of letters to defendant requesting payment of 8908 pounds, beginning with a letter dated May 21, 1965, in which plaintiff stated '* * * at the time of writing, nothing has been received.' Defendant answered with a letter to plaintiff dated June 3, 1965, stating she was unable to afford the guns, and that 'I mailed a check for 15% Of the gun bid and since this is the legitimate charges of refusal I can do no more.'

In answer to defendant's interrogatories the plaintiff stated that it still held the guns; that the value of the goods was the price paid for the goods at the sale; that defendant made the purchase through her agent, Mrs. Bowater; that both sales were conducted under the terms and conditions set out in the catalogues; and that there was no custom or provision for a defaulting purchaser to pay 15% And be relieved of the purchases.

The conditions of sale printed in the catalogues provided in part under VI as follows:

'* * * If, at the expiration of Two Days after the conclusion of the sale, unless otherwise agreed, the lots are not cleared or paid for, they may then be sold immediately, either publicly or by private treaty, without any notice being given to the defaulter.'

and under VII as follows:

'Upon failure of the buyer to comply with any of the above conditions, the money deposited in part-payment shall be forfeited; and the defaulter at this sale shall make good any loss arising from the re-sale, together with the charges and expenses in respect of both sales.'

At this place we point out for explanation and clarification the following circumstances shown or described from the record. The total amount of the sales was 10,480 pounds and 15% Thereof is 1572 pounds. The credit on the account was 1571 pounds, 2 shillings, and 3 pence, a difference of 17 shillings and 9 pence, or about $2.50. Defendant urges in this court that this difference was a tariff or exchange charge. Neither of the earlier two checks was honored by the Wichita Falls bank, so they obviously were not responsible for the credit on the account. This leaves for consideration the third...