Lease Finance, Inc. v. Burger

• Decision Date: 29 September 1977
• Docket Number: No. 76-563,76-563
• Parties: , 23 UCC Rep.Serv. 1309 LEASE FINANCE, INCORPORATED, Plaintiff-Appellee, v. William BURGER and Dorothy Burger, d/b/a Highlander Center, a general partnership, Defendants-Appellants and Cross-Appellants, and Cowell Sales Co., Inc., a Colorado Corporation, Defendant-Appellant and Cross-Appellee. . III
• Court: Colorado Court of Appeals

Page 857

575 P.2d 857

40 Colo.App. 107, 23 UCC Rep.Serv. 1309

LEASE FINANCE, INCORPORATED, Plaintiff-Appellee, v. William BURGER and Dorothy Burger, d/b/a Highlander Center a general partnership, Defendants-Appellants and Cross-Appellants and Cowell Sales Co., Inc., a Colorado Corporation Defendant-Appellant and Cross-Appellee.

No. 76-563.

Colorado Court of Appeals, Div. III.

Sept. 29, 1977.

Rehearing Denied Nov. 10, 1977.

Certiorari Denied Feb. 21, 1978.

Balaban & Lutz, John A. Lobus, Denver, for plaintiff-appellee.

Overton, Dittemore & Nutt, P. C., John H. Brown, Guy M. Heyl, Englewood, for defendants-appellants and cross-appellants.

Myrick & Newton, P. C., Robert Newton, Jennifer K. Brown, Denver, for defendant-appellant and cross-appellee.

RULAND, Judge.

Plaintiff, Lease Finance Incorporated, brought this action against defendants, Cowell Sales Co., Inc., and William and Dorothy Burger, for conversion of a 12-pound capacity dry cleaning machine; Lease Finance also claimed damages from the Burgers for breach of a lease agreement pertaining to that machine. Cowell Sales cross-claimed against the Burgers for indemnity on the conversion claim and sought damages for breach of a contract for sale of an 18-pound capacity dry cleaning machine and other items. The Burgers asserted cross-claims against Cowell Sales for breach of warranty on the 12-pound machine. The Burgers appeal from judgments entered in favor of Lease Finance and Cowell Sales. Cowell Sales appeals from a judgment entered against it in favor of Lease Finance. We affirm in part, reverse in part, and remand for further proceedings.

The record reflects the following sequence of events. On March 1, 1972, Cowell Sales entered into a contract with the Burgers to sell them the 12-pound machine for a laundromat operated by the Burgers. An invoice dated September 29 indicates that the transaction was completed on that date, and that the Burgers paid for the machine. At some point the Burgers determined that it would be preferable to lease the machine instead of purchase it. Accordingly, they entered into a "master lease agreement" with Lease Finance for lease of the 12-pound machine and various other equipment effective October 25. Pursuant to that agreement, the Burgers were to pay $419 per month for a period of 36 months, commencing on that date. Cowell Sales forwarded an invoice to Lease Finance for the machine and on November 2, Cowell Sales received a check from Lease Finance in payment and endorsed the check to the Burgers.

During the summer of 1973, the Burgers encountered numerous problems in operating the 12-pound machine. Various attempts by Cowell Sales and the manufacturer to cause the machine to operate properly were unsuccessful.

Frustrated by the performance of the machine, the Burgers returned it to Cowell Sales. Cowell Sales agreed to return the 12-pound machine to the manufacturer's representative on behalf of the Burgers and apply the amount received as credit on a new 18-pound machine which Cowell Sales contracted to sell the Burgers for a new laundromat which the Burgers wanted to establish in Snowbridge. Lease Finance conditionally approved the sale subject to the 18-pound machine being substituted for the 12-pound machine as collateral on a new lease agreement. Contemporaneous with the exchange agreement, the Burgers agreed to purchase from Cowell Sales numerous items in addition to the 18-pound machine for their proposed Snowbridge laundromat. Apparently it was contemplated that Lease Finance would pay Cowell Sales in the same manner as it had purchased the 12-pound machine. Cowell Sales returned the 12-pound machine to the manufacturer and received a credit of about $7,000.

Later the Burgers refused to consummate the contract relating to the 18-pound machine, claiming that in subsequent oral discussions Cowell Sales had agreed to condition the sale of all the equipment on their acquisition of a lease in a particular building in Snowbridge and that the lease was not obtained. Cowell Sales resold the 18-pound machine to a third party.

Following a trial to the court, it concluded that Cowell Sales and the Burgers had "unintentionally" converted the 12-pound machine and awarded a joint judgment against them in favor of Lease Finance in the amount of $6,965 plus interest. The court further concluded that the Burgers must indemnify Cowell Sales for those amounts. The trial court also entered judgment in favor of Lease Finance in the amount of $8,556.64 on its claim that the Burgers had breached the lease agreement.

As to Cowell Sales' claim against the Burgers, the trial court awarded lost profits to Cowell Sales for the Burgers' nonacceptance of the 18-pound machine and the Snowbridge equipment in the amount of $7,716.75, together with incidental damages in the amount of $1,888.78 and attorneys fees in the amount of $3,563.25. Judgment was also awarded in favor of Cowell Sales on an amount admittedly owed by the Burgers for certain purchases totalling $1,118.66. As to the Burgers' claim against Cowell Sales, the trial court ruled that the purchase contract between the Burgers and Cowell Sales excluded all warranties. The trial court also ruled that evidence of the oral agreement between the Burgers and Cowell Sales relating to the Snowbridge sale was not admissible under the parol evidence rule.

I. Cowell Sales' Appeal

A. Legal Effect of the Lease

Cowell Sales first contends that the master lease agreement between Lease Finance and the Burgers was in fact a conditional sales contract, that Cowell Sales was a "buyer in ordinary course of business," pursuant to § 4-9-307, C.R.S.1973, and that, therefore, it could not have converted the 12-pound machine since it took free of the Lease Finance security interest. See § 4-9-307(1), C.R.S.1973. However, we affirm the trial court's conclusion that the transaction between Lease Finance and the Burgers constitutes a lease.

Whether a transaction is characterized as a lease or sale is not conclusive, but rather it is the intention of the parties which is controlling, that intention to be determined by the facts of each case. See § 4-1-201(37), C.R.S.1973. Thus, "any transaction (regardless of its form) which is intended to create a security interest" will be subject to article 9 of the U.C.C. Section 4-9-102, C.R.S.1973. However, the intention of the parties can only be gleaned circumstantially.

Indicative factors may include: (1) Whether the lessee is given an option to purchase the equipment, and, if so, whether the option price is nominal, see § 4-1-201(37), C.R.S.1973; (2) whether the lessee acquires any equity in the equipment, see Crest Investment Trust, Inc. v. Atlantic Mobile Corp., 252 Md. 286, 250 A.2d 246 (1969); (3) whether the lessee is required to bear the entire risk of the loss; or (4) pay all charges and taxes imposed on ownership; (5) whether there is a provision for acceleration of rental payments; (6) whether the property was purchased specifically for lease to this lessee, see Leasing Service Corp. v. American National Bank & Trust, 19 U.C.C.Rptr. 252 (D.N.J. April 23, 1976); and (7) whether the warranties of merchantability and fitness for a particular purpose are specifically excluded by the lease agreement. WOCO v. Benjamin Franklin Corp., 20 U.C.C.Rptr. 1015 (D.N.H. December 22, 1976).

Under the foregoing criteria, we recognize that the master lease agreement does contain some attributes of an installment sales contract. The lessee is required to bear the entire risk of loss and to pay all taxes imposed on the equipment. The agreement does contain a provision for acceleration of rental payments in the event of default, and does purport specifically to exclude the warranties of merchantability and fitness, and the equipment was purchased specifically for the Burgers' use. However, the fact that the written agreement did not grant the Burgers an option to purchase the equipment and other evidence that both parties apparently intended the transaction to be a lease, support the trial court's determination on this issue. See Allen v. Cohen, 310 F.2d 312 (2d Cir. 1962).

Our holding makes it unnecessary for us to consider Cowell Sales' argument that it was a "buyer in ordinary course of business."

B. Waiver, Estoppel

Cowell Sales next contends that Lease Finance waived its claim of ownership in the 12-pound dry cleaner when it conditionally agreed to exchange the 12-pound machine for an 18-pound machine subject to its being included on a new lease agreement identical to the master lease agreement. Further, Cowell Sales contends that by its action, Lease Finance should be estopped from asserting that the 12-pound machine was sold without its permission.

While both issues were raised by Cowell Sales in its opening statement and in the motion for new trial, see Great American Insurance Co. v. Ferndale Development Co., 185 Colo. 252, 523 P.2d 979 (1974), the trial court failed to address these issues in its findings of fact and conclusions of law. Moreover, since certain of the evidence is in conflict as to Lease Finance's action following the Burgers' initial decision to purchase the 18-pound machine, we may not resolve these issues on appeal. Hence, the case must be remanded to the trial court for resolution of these issues.

C. Conversion Damages

Cowell Sales also contends that the evidence was insufficient to support the amount of damages awarded by the trial court and that it applied the wrong measure of damages under the facts of this case. However, we do not address...