Nance, Inc. v. Winebarger

• Decision Date: 26 February 1949
• Citation: 222 S.W.2d 231,32 Tenn.App. 229
• Parties: NANCE, Inc. v. WINEBARGER et al.
• Court: Tennessee Court of Appeals

222 S.W.2d 231

32 Tenn.App. 229

NANCE, Inc. v. WINEBARGER et al.

Court of Appeals of Tennessee, Eastern Section.

February 26, 1949

Appeal from Chancery Court, Washington County; Joe W. Worley Chancellor.

Suit of replevin by Nance, Incorporated, against A. M. Winebarger and Deakins Motor Company. From a decree for plaintiff, the defendants appeal.

Affirmed.

Simmonds & Bowman, Johnson City, for appellants.

Hawkins & Bryant, Johnson City, for appellee.

McAMIS Judge.

A. M Winebarger and Deakins Motor Company, a corporation defendants below, appeal for a reversal of a decree awarding complainant Nance, Incorporated, the possession of a 1948 model Oldsmobile automobile.

Nance Incorporated, is the dealer for the manufacturer of Oldsmobile automobiles. It has a policy not to sell new cars when it is known that they will likely not be used personally by the buyer or may fall into the hands of other dealers and become the subject of speculation at prices above the list price fixed by the manufacturer. We infer that the manufacturer has a similar policy which it imposes upon its dealers.

On August 27, 1948, at about 11 A.M. defendant A. M. Winebarger saw two new Oldsmobiles in the show window of Nance, Incorporated. He went immediately to defendant Deakins Motor Company and, without disclosing his purpose, obtained a 1946 De Soto which he took out for trial. He then drove the De Soto to the show room of Nance, Incorporated, where he contacted Jack Allen, a salesman. Allen, after trying out the De Soto, told Winebarger he would trade for around $950.00 difference. Winebarger offered to trade for $800.00. Allen then made a definite offer to trade for $950.00 to which Winebarger replied, 'I will go and see my wife and let you know this afternoon.' Allen said nothing and it is not claimed that Winebarger requested him to hold the offer open until he returned or that he agreed to do so.

Winebarger drove the De Soto back to Deakins Motor Company and sought to induce the salesman to reduce the price of the De Soto from $1,600.00 to $1,500.00. This request was submitted to Mr. Deakins, the manager, who declined to reduce the price. When it appeared that Winebarger would not trade at $1,600.00 Deakins told him to go ahead and trade for the Oldsmobile 'for him' and he would sell it or 'work it out someway'. A bill of sale was thereupon made out and predated to August 24, 1948 showing a transfer of the De Soto to Winebarger. Winebarger admits that he invested nothing in the De Soto and makes no claim that he ever intended to discuss the matter with his wife as suggested in his conversation with Allen.

At about 12:30, Winebarger returned to Nance, Incorporated, and, finding Allen, the salesman, out for lunch, he told Mr. Nance that he had traded the De Soto to Allen for the Oldsmobile, not that he merely had an offer from Allen. Nance replied that if he had traded with Allen he would have to close the trade with him. However, upon Winebarger's insistence Nance agreed for him to take the Oldsmobile out for the purpose of getting the license so that he could close the trade when Allen returned and by this means get back to his work sooner. Winebarger left the De Soto and the bill of sale to him from Deakins Motor Company at Nance, Incorporated, and drove the Oldsmobile to Deakins Motor Company which sent one of its employees to get the license. Winebarger immediately returned to Nance, Incorporated, and, representing to an employee in the shop that he had purchased the Oldsmobile, had the plates put on and, without further discussion with Allen or Nance, took the Oldsmobile to his place of employment. He did not sign a bill of sale for the De Soto nor was there any memorandum signed by Nance, Incorporated.

When Allen returned from lunch at about 2 P.M. he found the Oldsmobile gone and Allen and Nance went to see Winebarger insisting that there had been no sale and adding that the Oldsmobile had been ordered specially for another customer and had to be delivered that day. It does not appear that there was any basis for the latter statement. Winebarger declined to surrender the Oldsmobile and Allen and Nance left the De Soto and the bill of sale for it and returned to their place of business. The present suit was promptly instituted as an action of replevin.

Mr. Nance testified that while there was no sale of the Oldsmobile he would not go through with the deal because an examination of the bill of sale for the De Soto when Allen returned convinced him that the Deakins Motor Company was the actual purchaser or at least in some way interested in the purchase of the Oldsmobile and that he so advised Winebarger.

The Chancellor found that Winebarger's negotiations with Allen did not result in a continuing offer but, at most, an offer subject to countermand at any time; that Winebarger's conversation with Nance when he returned to accept Allen's offer resulted in nothing being done that would bind the seller; that there was no delivery claimed by Winebarger and that the seller withdrew the offer before acceptance as it had a right to do. It was further held that Winebarger's failure to disclose his agency for Deakins Motor Company did not make out a case of fraud cognizable in law and that there was no imputation of bad faith growing out of the purchase for an undisclosed principal. It was found unnecessary to determine the effect or materiality of the Statute of Frauds, Code Section 7197, making voidable a parol sale or agreement to sell personal property valued at $500.00 or more. However, the seller has here renewed conditionally its insistence that the Statute does apply and that, if contrary to the Chancellor's holding, there was an otherwise valid acceptance of a continuing offer to sell, the acceptance could not be by Winebarger in an entirely different capacity than that in which he was acting when the offer was made or, stated differently, that the seller had a right to know with whom it was dealing and that there was no meeting of the minds of the parties on that material point.

Though the contrary is insisted, in a broad appeal in an equity cause it is not requisite that the successful party who is satisfied with the result appeal in order to obtain a decision on pretermitted questions. The Court, on appeal, may reach the same result but upon different grounds. Harper v. Lovell, 105 Tenn. 614, 622, 59 S.W. 337; Butler v. Eureka Security Fire & Marine Ins. Co., 21 Tenn.App. 97, 105 S.W.2d 523; Fletcher v....