Lake Village Implement Co. v. Cox, 5--5405

• Citation: 249 Ark. 733,461 S.W.2d 108
• Decision Date: 21 December 1970
• Docket Number: No. 5--5405,5--5405
• Parties: LAKE VILLAGE IMPLEMENT COMPANY, Inc., Appellant, v. Crowell COX, Appellee.
• Court: Supreme Court of Arkansas

Page 108

461 S.W.2d 108

249 Ark. 733

LAKE VILLAGE IMPLEMENT COMPANY, Inc., Appellant, v. Crowell COX, Appellee.

No. 5--5405.

Supreme Court of Arkansas.

Dec. 21, 1970.

Clifton Bond, Monticello, for appellant.

James A. Ross, and James A. Ross, Jr., Monticello, for appellee.

JONES, Justice.

On August 10, 1968, Crowell Cox purchased some silage equipment from Lake Village Implement Company, Inc. for $5,850. He paid $1,850 in cash and the equipment was delivered to him. On the original purchase order form signed by Cox appeared the written notation '$4,000 to be financed.' After the equipment was delivered to Cox, he signed a promissory note form reciting $4,000 due October 15, 1968. He also signed and delivered three post dated checks totaling $4,000, the last one being dated October 15, 1968. The checks were dishonored by the bank for insufficient funds when they were presented for payment, and when Cox refused to deliver possession or pay for the equipment upon demand, the equipment was repossessed by replevin sued out by the company.

The company contended that it retained title in the equipment until the purchase price was paid and that in so far as it and Cox were concerned, the contract constituted a cash transaction, as evidenced by the note and the checks. Cox did not question the company's retention of title, but he contended that the balance on the purchase price was to be financed by the company over a two year period; and that under this verbal agreement with the company he owed nothing on the equipment when it was wrongfully taken under delivery order in the replevin. Cox filed a counterclaim alleging damages in the amount of $14,250 for loss of a silage crop he was unable to harvest because of the wrongful taking, and for $15,128.68 loss in the sale of cattle he was unable to feed because of the loss of the silage crop. He also counterclaimed for the down payment he had made on the equipment and for the value of a wagon, drum and hose taken along with the silage equipment.

A jury trial resulted in a judgment for a return of the equipment to Mr. Cox and for damages in the amount of $2,000. On appeal to this court the implement company relies on the following points for reversal:

'That the contract upon which the Counter-claim of the appellee is based for damages and possession of the disputed property is not to be performed within one (1) year and is not signed by any officer, agent or employee of the appellant to be charged therewith and is within the Statute of Frauds, Ark.Stat. Sec. 38--101.

Damages for a loss of profit upon the sale of a herd of 339 head of cattle which were to be fed a growing crop of silage which was to be cut and harvested with farm machinery replevined by the appellant from appellee are too remote and speculative and dependent upon chance to be susceptible of adequate proof and to form a basis for recovery by the appellee.

That appellant was the owner of the disputed farm machinery, entitled to its immediate possession, and said farm machinery was unlawfully detained by appellee and that the verdict of the jury granting possession of said farm machinery to appellee is contrary both to the law and the evidence.'

Part payment of the purchase price and delivery of the possession of merchandise is usually sufficient to take an otherwise valid contract out of the statute of frauds. Harper v. Albright, 228 Ark. 760, 310 S.W.2d 475, see also Ark.Stat.Ann. § 68--1404 (Repl.1957). We do not pass on the validity of the contract in this case however, for we conclude that the case must be reversed for error in the instruction No. 7 as...