Pearrow v. Huntsman, 5--4992

• Decision Date: 22 June 1970
• Docket Number: No. 5--4992,5--4992
• Citation: 248 Ark. 1146,455 S.W.2d 128
• Parties: , 7 UCC Rep.Serv. 1173 H. C. PEARROW et al., Appellants, v. Harold HUNTSMAN d/b/a Huntsman Farm Store, Appellee.
• Court: Arkansas Supreme Court

Page 128

455 S.W.2d 128

248 Ark. 1146, 7 UCC Rep.Serv. 1173

H. C. PEARROW et al., Appellants, v. Harold HUNTSMAN d/b/a Huntsman Farm Store, Appellee.

No. 5--4992.

Supreme Court of Arkansas.

June 22, 1970.

Darrell Hickman, Searcy, for appellants.

Allen, Dahlen & Young, Little Rock, for appellee.

FOGLEMAN, Justice.

The judgment of the trial court, sitting upon waiver of jury trial, was rendered in a suit brought by appellee to recover the following:

$100, balance due from M. V. Pearrow for a used tractor and cultivator

$329.37, from M. V. Pearrow upon open account for materials, goods and services

$983.89, from H. C. Pearrow and M. V. Pearrow on open account for goods, materials and services

$4,561.87, as deficiency judgment on a Model D--19 Allis-Chalmers tractor sold to M. V. Pearrow and H. C. Pearrow as partners on May 5, 1964

$5,233.99, as deficiency judgment on an Allis-Chalmbers combine and equipment sold to both of the appellants as partners on September 30, 1964

$992.05, as the balance due upon a note for $1,200 payable in annual installments of $400 each plus interest

H. C. Pearrow filed a counterclaim for $5,000 as damages alleging a breach of warranty by appellee in the representation that the tractor and combine were without defect and new. M. V. Pearrow made an identical defense. The answers of each of the parties contained a general denial. The judgment entered contained findings that appellants were indebted to appellee, after allowing all credits, in the amounts for which suit was brought. The counterclaim was dismissed.

Two points for reversal are relied upon. They are:

I.

THE COURT ERRED IN REFUSING TO FIND FOR THE APPELLANTS SIMPLY BECAUSE THE AMOUNT OF DAMAGES WAS DIFFICULT TO ASCERTAIN.

II.

THE COURT'S FINDING THAT THERE WAS NO BREACH OF WARRANTY WAS CLEARLY CONTRARY TO THE PREPONDERANCE OF THE EVIDENCE AND CANNOT BE SUSTAINED.

We shall discuss them in the order listed.

I.

This point is premised upon the assumption of the appellants that the court's finding of fact dictated at the conclusion of the hearing was based solely upon uncertainty as to the amount of damages suffered by appellants by reason of the alleged breaches of warranty. We do not think that this assumption is warranted. After outlining the allegations of the complaint, the trial judge stated that testimony on the part of appellee showed that there were balances due him, after repossession and sale of the equipment in the amounts alleged in the complaint, that $992.05 was due on the promissory note, that testimony on behalf of the appellants also showed that the parties owed the amounts alleged to be due upon open account. The trial judge then made the following statement:

Then, the testimony on the part of the defendant, M. V. Pearrow, said that they were out a lot of expense on their crops, quite a lot; maybe close to $4,000 or maybe more, and that's the nearest he came to giving the court any definite figures; the other witnesses for the defense, one testified that he was paid three or $400 to help combine some beans, and another one testified that he was paid probably three or four or five or $600; there is testimony to the effect that on the parts of the Defendants that the equipment was defective; I have testimony on the part of the Plaintiff that it was not defective, and it was not properly cared for, and abused; there is also some testimony that most of the complaints were taken care of during the warranty period.

Now, if this court were to find that the Pearrows suffered damages to their crops because this equipment was not in good order when they bought it, and didn't stand up, just what figure would the court fix? There is no definite testimony here as to any amount; I can't give you judgment for close to $4,000 or maybe more; I can't give you judgment for three or four or five or $600; this court cannot, under the law, speculate as to the amount of damages, or whether they existed; so it is the holding of this court that, according to the preponderance of the evidence in this case, that Plaintiffs should recover the balance due on the contracts, $4,567.87 on the tractor contract; $5,233.99 on the combine; $992.05 on the note, for a total of, if my addition is correct, $11,771.80.

When the findings of the trial judge and the judgment entered thereon are considered together, we do not think that the inference drawn by appellants is justified. The trial judge's statement as to his uncertainty as to the amount of damages the court might fix under the testimony was stated in a question based upon a condition, i.e., if the court were to find that damages were suffered because the equipment was not in good order when bought. There was no...