Lamkins v. International Harvester Company

• Decision Date: 10 July 1944
• Docket Number: 4-7382
• Citation: 182 S.W.2d 203,207 Ark. 637
• Parties: Lamkins v. International Harvester Company
• Court: Arkansas Supreme Court

182 S.W.2d 203

207 Ark. 637

Lamkins v. International Harvester Company

No. 4-7382

Supreme Court of Arkansas

July 10, 1944

Appeal from Jackson Circuit Court; S. M. Bone, Judge.

Affirmed.

Ras Priest, for appellant.

Kaneaster Hodges and Pickens & Pickens, for appellee.

OPINION

Knox Justice.

The question presented by this appeal is whether in view of the special facts and circumstances connected with the sale of a tractor, the seller thereof could be held liable for special damages resulting from the loss of crops occasioned by inability to cultivate the same because the tractor could not be used at night, the seller having failed to furnish starter and lighting equipment for the tractor within the time contemplated by contract.

On or about December 4, 1941, appellant verbally contracted with appellee, Gay Lacy, dealer for International Tractors, for the purchase of one H. tractor, one H. M. 221 cultivator, two cylinders, and one 9 A. disc harrow, for a total price of $ 1,485. The parties agreed that buyer would deliver and seller accept a pair of horses and an old tractor for a credit for $ 642, and that the balance of the purchase price, $ 843, together with a finance charge of $ 53.71, a total of $ 896.71, should be represented by a title retaining note, payable in three installments as follows: 10/1/42 -- $ 404.84, 4/1/43 -- $ 162.72; and 10/1/43 -- $ 329.15.

Because of the limited number of tractors available, it was agreed that delivery of the new equipment might be postponed until about March 1, 1942, and as a matter of fact delivery was actually delayed until after May 1, 1942. In the meantime appellant had surrendered to dealer the horses and old tractor.

The new equipment was finally delivered to appellant's home at a time when he was absent therefrom, but a few days thereafter the dealer returned and requested appellant to execute the note and the sales contract. Appellant testified that he at first refused to execute the papers, because the tractor was not equipped with lights and starter, but upon the express promise by dealer that such equipment would be supplied within three weeks he finally did sign the papers. On account of governmental priority regulations this equipment was not supplied within the three weeks period. In November, 1942, the dealer obtained this equipment, and requested that appellant bring the tractor to his shop so that it might be installed. Fearing that the tractor would be held for past due installment on note, appellant refused to deliver it to dealer, but insisted that equipment be installed at his home, and while tractor was in his possession. This equipment was actually installed on the tractor after this action was begun.

When the equipment, without starter and lighting equipment, was delivered in May of 1942, appellant did sign the note, and, also, a document designated "Order for Farm Equipment." These instruments were introduced in evidence at the trial. No words appear in these written instruments indicating that any part of the equipment had not been delivered, nor that the dealer was charged with notice that the tractor was to be used in cultivating a crop at night, nor that the parties were contracting with respect to special damage which might accrue to appellant by reason of loss of crops resulting from his inability to use tractor at night for want of lights thereon. The note and contract each lists one article of equipment included in the sale and price thereof as follows: "Two cylinders $ 20." Appellee Lacy, the dealer, in his brief says that this item "constituted the lighting equipment for this tractor."

The note was indorsed and negotiated to appellee, International Harvester Company, on June 4, 1942, which company began this action in replevin on January 16, 1943. Appellant filed answer and also filed cross-complaint against Lacy, the dealer, and the International Harvester Company. His cross-action was based upon the failure to deliver the starter and lighting equipment, and the resultant loss occasioned by inability to use the tractor at night. At the time the original cross-complaint was filed, the equipment had not been placed on the tractor. He alleged: "That by reason of the failure of the cross-defendant, Gay Lacy, and the International Harvester Company, to equip said tractor with lights and a starter as he agreed to do, the defendant was denied the use of said tractor at nights over a period of forty-five days; and by reason of such deprivation, the defendant was unable to plant, cultivate and harvest a part of his crop, namely, twenty-five acres of land which he could and would have planted and cultivated in soy beans if he had had the lights and starter on said tractor, and by reason of such loss, the defendant has been damaged in the sum of $ 10 per night, for each and every night he was unable to use said tractor, or a total sum of $ 450, which amount he is entitled to set off against the indebtedness of $ 896.71 mentioned in the note sued on."

The prayer was for said sum of $ 450, and the "additional sum of $ 100, the value of the lights and starter which were not delivered."

The starter and lighting equipment was later delivered and thereafter appellant, in an amendment to his cross-complaint, stated: "Defendant further says that the starter and lights in question were in fact delivered about April 1, 1943, and installed, and, while they were second-hand, or appeared to be so, and have never been satisfactory, they have been retained by the defendant, and the demand for their value is therefore waived." His amended prayer is for $ 450 by way of special damages as a set-off against the note sued on . . . or . . ....