Pinnacle Min. Co. of Northern West Virginia v. Duncan Aircraft Sales of Florida, Inc., 18855

• Citation: 387 S.E.2d 542,182 W.Va. 307
• Decision Date: 30 November 1989
• Docket Number: No. 18855,18855
• Court: Supreme Court of West Virginia
• Parties: , 11 UCC Rep.Serv.2d 1085 PINNACLE MINING COMPANY OF NORTHERN WEST VIRGINIA v. DUNCAN AIRCRAFT SALES OF FLORIDA, INC.

Page 542

387 S.E.2d 542

182 W.Va. 307, 11 UCC Rep.Serv.2d 1085

PINNACLE MINING COMPANY OF NORTHERN WEST VIRGINIA v. DUNCAN AIRCRAFT SALES OF FLORIDA, INC.

No. 18855.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1989.

Syllabus by the Court

1. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1984).

2. Under the sales portion of the Uniform Commercial Code, W.Va.Code, 46-2-101, et seq., there is no requirement that the seller have title to the goods at the time the contract is executed. In the absence of some specific language in the contract, it is sufficient if the seller has title at the time the goods are delivered.

3. "Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." Syllabus Point 2, French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38 (1948).

George B. Armistead, Baker & Armistead, Morgantown, for Duncan Aircraft Sales of Florida.

Raymond H. Yackel, Oliver & Yackel, Morgantown, for Pinnacle Mining Co. of Northern West Virginia.

MILLER, Justice:

In this appeal, we are asked to determine whether the Circuit Court of Monongalia County erred in setting aside the jury verdict in favor of the defendant below, Duncan Aircraft Sales of Florida, Inc. (Duncan), on its counterclaim against the plaintiff below, Pinnacle Mining Company of Northern West Virginia (Pinnacle), and awarding a new trial on all issues. We find that the trial court erred.

I.

Duncan is a Florida-based retail dealer of new and used commercial and private aircraft. In June, 1984, the owner of Pinnacle, Joseph Laurita, contacted Duncan about purchasing a used 1971 Hansa Jet S/N 1045, which was advertised in a magazine entitled "AC Flyer." The parties entered into negotiations for the sale of the aircraft. They subsequently agreed upon a price for the aircraft and for a downpayment, subject to the execution of a written contract.

In August, 1985, Duncan sent Pinnacle a contract for its approval. The contract provided for a purchase price of $270,000, with a $35,000 downpayment, in addition to other terms and conditions.

After reviewing the contract, Pinnacle advised Duncan that some of the terms of the contract were unacceptable. Pinnacle wanted two contracts of sale, one providing for the purchase of the aircraft engines only by another business owned by Mr. Laurita for a price of $135,000 and a deposit of $17,500, and the other providing for the purchase of the aircraft body by the plaintiff for $135,000, with a deposit of $17,500. ¹ Under the terms of these contracts Duncan was required to obtain certification of the airworthiness of the plane from Walker Aviation, a certified Hansa jet repair station. The contracts further provided that if Walker Aviation did not certify the plane as required, Pinnacle's deposit was to be refunded and the contracts terminated. These terms were accepted by Duncan, and the aircraft was delivered to Walker Aviation for certification.

In November, 1985, Walker Aviation certified the condition and safety of the aircraft, and Duncan advised Pinnacle that the plane was ready for delivery. Pinnacle, in a letter to Duncan dated January 3, 1986, questioned the certification. In a letter dated January 9, 1986, Duncan responded, advising Pinnacle either to fulfill the terms of the contract or to notify Duncan of its intention to breach the contract.

On March 17, 1986, Pinnacle sued Duncan for breach of contract and demanded that the contract be rescinded, that its downpayment be returned, and that punitive damages in the amount of $100,000 be awarded. Duncan filed an answer denying the allegations contained in the complaint and asserting that it had satisfied all conditions necessary to the performance of the contract. Duncan also filed a counterclaim requesting damages in excess of $125,000.

The trial began on November 12, 1986, and concluded on November 15, 1986. The jury returned a verdict against Pinnacle and in favor of Duncan on its counterclaim. It awarded Duncan $25,000 in damages and the deposit of $17,500 paid by the plaintiff. As earlier noted, the trial court set aside the jury verdict and granted a new trial.

II.

Duncan's first contention is that the trial court erred in ruling that it improperly permitted the instructions to be taken to the jury room during deliberations in violation of Rule 51 of the West Virginia Rules of Civil Procedure. At the time this proceeding was initiated, Rule 51, W.Va.R.Civ.P., provided, in pertinent part: "Unless otherwise ordered by the court with the consent of all parties affected thereby, instructions shall not be shown to the jury or taken to the jury room." ²

This Court has stated that under Rule 51, objections to jury instructions or to a court's charge must be noted in the record. See Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976), quoting Syllabus Point 4, Ellison v. Wood & Bush Co., 153 W.Va. 506, 170 S.E.2d 321 (1969). Furthermore, objections cannot be raised for the first time in a post-trial motion to set aside the verdict. Roberts v. Powell, 157 W.Va. 199, 207 S.E.2d 123 (1973).

Here, neither party objected on the record when the trial court announced that the jury would be permitted to take the instructions to the jury room. Furthermore, there is no indication from the record that the jury's access to these instructions was prejudicial to either party. For these reasons, we find that the trial court erred in granting a new trial on this issue.

III.

Duncan's next contention is that the trial court erred in finding a new trial necessary because there was insufficient evidence that Duncan was the registered owner of the aircraft at the time of the contract. Our rule with regard to the sufficiency of the evidence is stated in Syllabus Point 5 of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1984):

"In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved."

See also Syllabus Point 4, Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989); Syllabus Point 3, Vercellotti v. Bowen, 179 W.Va. 650, 371 S.E.2d 371 (1988); Syllabus Point 6, McClung v. Marion County Comm'n, 178 W.Va. 444, 360 S.E.2d 221 (1987); Syllabus Point 4, West Virginia Dep't of Highways v. Roda, 177 W.Va. 323, 352 S.E.2d 134 (1986); Syllabus Point 3, Hayseeds v. State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986).

The jury heard testimony from Duncan's owner, Joseph Duncan, that when the plane was for sale it was titled in the name of Philco Aviation, of which Mr. Duncan owned 50 percent. Mr. Duncan further testified that title was subsequently transferred to Duncan Aircraft and that there was no lien on the airplane at the time of the contract. Thus, there was sufficient evidence for the jury to find for Duncan on the title issue.

Moreover, under the sales portion of the Uniform Commercial Code (UCC), W.Va.Code, 46-2-101, et seq., there is no requirement that the seller have title to the goods ³ at the time the contract is executed. In the absence of some specific language in the contract, it is sufficient if the seller has title at the time the goods are delivered. This is recognized in the UCC § 2-106(1), which provides for both present and future sales. ⁴ See generally R. Nordstrom, Law of Sales § 57 (1970); 67 Am.Jur.2d Sales § 244 (1985).

While this point appears not to have received a great deal of attention by the courts, it is clear that the UCC was designed to afford a more flexible approach to the title question. ⁵ The Maryland Supreme Court in William F. Wilke, Inc. v. Cummins Diesel Engines, Inc., 252 Md. 611, 615, 250 A.2d 886, 889 (1969), made this summary:

"One of the more startling differences between the U.C.C. and the Sales Act is the U.C.C.'s adoption of a flexible contractual approach instead of following the more rigid concept of title to which the Sales Act adhered. Girard Trust Corn Exchange Bank v. Warren Lepley Ford, Inc., 12 Pa.D. & C.2d 351 (1957); Uniform Commercial Code Section; The Passage of Title, Carrington, 14 Wyo.L.J. 17, 25 (1959); The Law of Sales in the Proposed Uniform Commercial Code, Williston, 63 Harv.L.Rev. 561, 581 (1950); The Status of the Concept of Title in Article II of the Uniform Commercial Code, 37 St. John's L.Rev. 178 (1962). See also, Silver v. Sloop Silver Cloud, 259 F.Supp. 187 (S.D.N.Y.1966)." ⁶

See also Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874 (1974); Beasley

v. Kerr-McGee Chem. Corp., 273 S.C. 523, 257 S.E.2d 726 (1979).

A further indication that title to goods need not exist when the contract for sale is made is found in UCC § 2-312, relating to the warranty of title. This provision states, in material part: "(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that (a) the title conveyed shall be good, and its transfer rightful[.]" ⁷ The Official Comment under this section states: "The warranty extends to a buyer whether or not the seller was in...