Izadi v. Machado (Gus) Ford, Inc.

• Citation: 550 So.2d 1135,14 Fla. L. Weekly 1806
• Decision Date: 01 August 1989
• Docket Number: No. 88-1346,88-1346
• Parties: 14 Fla. L. Weekly 1806 Ahmad IZADI, Appellant, v. MACHADO (GUS) FORD, INC., Appellee.
• Court: Court of Appeal of Florida (US)

Page 1135

550 So.2d 1135

14 Fla. L. Weekly 1806

Ahmad IZADI, Appellant, v. MACHADO (GUS) FORD, INC., Appellee.

No. 88-1346.

District Court of Appeal of Florida Third District.

Aug. 1, 1989.

Jerry Kahn, Miami Beach, for appellant.

Fine, Jacobson, Schwartz, Nash, Block & England and Jorge L. Guerra, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

This is an appeal from the dismissal with prejudice of a three count complaint for damages arising out of the following advertisement placed by the appellee in the February 21, 1988 edition of the Miami Herald:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The complaint, the allegations of which must at this stage be regarded as true, alleged that the plaintiff Izadi attempted to purchase a 1988 Ford Ranger Pick-Up--the vehicle referred to at the foot of the ad--by tendering Gus Machado Ford $3,595 in cash ¹ and an unspecified trade-in. ² The proposal was made on the basis of his belief that the ad offered $3,000 as a "minimum trade-in allowance" for any vehicle, regardless of its actual value. As is elaborated below, the putative grounds for this understanding were that the $3,000 trade-in figure was prominently referred to at the top of the ad apparently as a portion of the consideration needed to "buy a ³ new Ford" and that it was also designated as the projected deduction from the $7,095 gross cost for the Ranger Pick-Up. Machado, however, in fact refused to recognize this interpretation of its advertisement and turned Izadi down. In doing so, it apparently relied instead on the infinitesimally small print under the $3,000 figure which indicated it applied only toward the purchase of "any New '88 Eddie Bauer Aerostar or Turbo T-Bird in stock"--neither of which was mentioned in the remainder of the ad--and the statements in the individual vehicle portions that the offer was based on a trade-in that was "worth $3,000." ⁴ [e.s.] Izadi then brought the present action based on claims of breach of contract, fraud and statutory violations involving misleading advertising. We hold that the trial judge erroneously held the contract and misleading advertising counts insufficient, but correctly dismissed the claim for fraud.

1. Breach of Contract. We first hold, on two somewhat distinct but closely related grounds, that the complaint states a cause of action for breach of an alleged contract which arose when Izadi accepted an offer contained in the advertisement, which was essentially to allow $3,000 toward the purchase of the Ranger for any vehicle the reader-offeree would produce, or, to put the same proposed deal in different words, to sell the Ranger for $3,595, plus any vehicle.

(a) It is of course well settled that a completed contract or, as here, an allegedly binding offer must be viewed as a whole, with due emphasis placed upon each of what may be inconsistent or conflicting provisions. NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.1941) ("Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used...."); Durham Tropical Land Corp. v. Sun Garden Sales Co., 106 Fla. 429, 138 So. 21 (1931), aff'd, 106 Fla. 429, 151 So. 327 (1932); Ross v. Savage, 66 Fla. 106, 63 So. 148 (1913); Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d 454, 456 (Fla.3d DCA 1961) ("The real intention, as disclosed by a fair consideration of all parts of a contract, should control the meaning given to mere words or particular provisions when they have reference to the main purpose."); 11 Fla.Jur. 2d Contracts § 121 (1979). In this case, that process might well involve disregarding both the superfine print and apparent qualification as to the value of the trade-in, as contradictory to the far more prominent thrust of the advertisement to the effect that $3,000 will be allowed for any trade-in on any Ford. Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d at 456 ("If a contract contains clauses which are apparently repugnant to each other, they must be given such an interpretation as will reconcile them."); 11 Fla.Jur.2d Contracts 118; see supra notes 1-3, and accompanying text. We therefore believe that the complaint appropriately alleges ⁵ that, objectively considered, the advertisement indeed contained just the unqualified $3,000 offer which was accepted by the plaintiff. ⁶ On the face of the pleadings, the case thus is like many previous ones in which it has been held, contrary to what is perhaps the usual rule, see 1 Williston on Contracts § 27 (W. Jaeger 3d ed. 1957); 1 Corbin on Contracts § 25 (1963), that an enforceable contract arises from an offer contained in an advertisement. R.E. Crummer & Co. v. Nuveen, 147 F.2d 3 (7th Cir.1945); Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn. 188, 86 N.W.2d 689 (1957); Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603 (1945); Payne v. Lautz Bros. & Co., 166 N.Y.S. 844 (City Ct.1916), aff'd, 168 N.Y.S. 369 (Sup.Ct.1918), aff'd, 185 A.D. 904, 171 N.Y.S. 1094 (1918); Oliver v. Henley, 21 S.W.2d 576 (Tex.Civ.App.1929); see Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634 (1977); 1 Williston on Contracts § 27, at 65 (1957). See generally Annot., Advertisement Addressed to Public Relating to Sale or Purchase of Goods at the Specified Price As an Offer the Acceptance of Which Will Consummate a Contract, 43 A.L.R.3d 1102 (1972).

Of course, if an offer were indeed conveyed by an objective reading of the ad, it does not matter that the car dealer may subjectively have not intended for its chosen language to constitute a binding offer. As Williston states:

[T]he test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.

1 Williston on Contracts § 94, at 339-340; see also Crummer, 147 F.2d at 3; Lefkowitz, 251 Minn. at 191, 86 N.W.2d at 691; Turner, 353 Mo. at 1191-1192, 186 S.W.2d at 608; Payne, 166 N.Y.S. at 844; Henley, 21 S.W.2d at 576. ⁷ That rule seems directly to apply to this situation.

(b) As a somewhat different, and perhaps more significant basis for upholding the breach of contract claim, we point to the surely permissible conclusion from the carefully chosen language and arrangement of the advertisement itself that Machado--although it did not intend to adhere to the $3,000 trade-in representation--affirmatively, but wrongly sought to make the public believe that it would be honored; that, in other words, the offer was to be used as the "bait" to be followed by a "switch" to another deal when the acceptance of that offer was refused. ⁸ Indeed, it is difficult to offer any other explanation for the blanket representation of a $3,000 trade-in for any vehicle--which is then hedged in sub-microscopic print to apply only to two models which were not otherwise referred to in the ad--or the obvious non-coincidence that the only example of the trade-in for the three vehicles which was set out in the ad was the very same $3,000. This situation invokes the applicability of a line of persuasive authority that a binding offer may be implied from the very fact that deliberately misleading advertising intentionally leads the reader to the conclusion that one exists. See Corbin on Contracts § 64, at 139 (Supp.1989) (where "bait and switch" advertising suspected, public policy "ought to justify a court in holding deceptive advertising to be an offer despite the seller's ... intent not to make any such offer"). See generally Annot., Advertisement Addressed to Public Relating to Sale or Purchase of Goods at the Specified Price as an Offer the Acceptance of Which Will Consummate a Contract, 43 A.L.R.3d 1102 § 2[b], at 1107. In short, the dealer can hardly deny that it did not mean what it purposely misled its customer into believing. This doctrine is expressed in the Restatement (Second) of Contracts which states:

§ 20. Effect of Misunderstanding

* * * * * *

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the first party[.]

Restatement (Second) of Contracts § 20(2)(a) (1981); Restatement (Second) of Contracts § 20(2)(a) comment d ("[I]f one party knows the other's meaning and manifests assent intending to insist on a different meaning, he may be guilty of misrepresentation. Whether or not there is such misrepresentation as would give the other party the power of avoidance, there is a contract under Subsection (2)(a), and the mere negligence of the other party is immaterial." [e.s.] ). In Johnson v. Capital City Ford Co., 85 So.2d 75 (La.App.1955), the court dealt with a case very like this one, in which the issue was whether a newspaper advertisement stating that any purchaser who bought a 1954 automobile before a certain date could exchange it for a newer model without an extra charge constituted a binding offer. The dealership argued that, despite the plain wording of the advertisement, it had no intention of making an offer, but merely sought to lure customers to the sales lot; it claimed also that, because of the small print at the bottom of the contract, any promises by the purchaser to exchange the vehicle for a later model were not binding. The court rejected these contentions on the holding that a contract had been formed even though the dealership "had an erroneous belief as to what the advertisement, as written, meant, or what it would legally convey." Johnson, 85 So.2d at 80. As the court said:

There is entirely too much disregard of law and truth in the business, social, and political world of to-day. * * * It is time to hold...