Schuler v. Dearing Chevrolet Co

• Citation: 46 S.E.2d 611
• Decision Date: 26 February 1948
• Docket Number: No. 31820.,31820.
• Parties: SCHULER . v. DEARING CHEVROLET CO.
• Court: United States Court of Appeals (Georgia)

46 S.E.2d 611

SCHULER .

v.DEARING CHEVROLET CO.

No. 31820.

Court of Appeals of Georgia,

Division No. 2.

Feb. 26, 1948.

Syllabus by the Court.

1. A written agreement between two parties based upon the consideration of the sale of a specific article of personal property and the sum of one dollar, receipt of which is acknowledged by the vendee from the vendor, wherein the vendee agrees that should he decide to sell said property within six months from the date of the first sale, that he will give the vendor the first opportunity to re-purchase said property at the original purchase price before offering the same for sale to others, is not void by reason of the fact that it lacks mutuality, and is unilateral, and it is not void by reason of indefiniteness and uncertainty. On the other hand said instrument constitutes a valid contract and sale of the property by the vendee without first giving the vendor the opportunity to re-purchase the same at its original purchase price constitutes a breach thereof. See Cothran v. Witham, 123 Ga. 190, 51 S.E. 285.

2. The measure of damages where one party is under contract to sell personal property to another, and breaches that contract, generally is the difference between the contract price and the market value at the time and place for delivery. See Sizer & Co. v. Melton, 129 Ga. 143 et seq., 7, 58 S.E. 1055; see also Bloom Sonsv. Amcricus Grocery Co., 116 Ga. 784(2), 43 S.E. 54.

3. Ambiguous pleadings when considered on demurrer must be construed most strongly against the pleader. See Moore et al. v. Atlanta Joint Stock Land Bank et al., 176 Ga. 697(2), 168 S.E. 558, and many cases annotated under § 81-101 of the Code, catchwords, "Ambiguous pleadings."

4. In a suit for the breach of a contract, where the only damages sued for are special damages which are not recoverable, and the petition contains no prayer for nominal damages and no allegation of general damages, nominal damages cannot be recovered. See George B. Curd Co.. v. Meigs Lumber & Manufacturing Co. 25 Ga.App. 504(1), 103 S.E. 740; Hadden v. Southern Messenger Service, 135 Ga. 372 (3), 374, 69 S.E. 480; Twin City Lbr. Co. v. Daniels, 22 Ga.App. 578(4), 96 S.E. 437.

Error from Superior Court Chatham County; D. S. Atkinson, Judge.

Action by Dearing Chevrolet Company against J. C. Schuler, Jr., to recover damages for breach of agreement to give plaintiff first opportunity to repurchase automobile sold by plaintiff to defendant. To review a judgment overruling defendant's general demurrer and certain grounds of special demurrer, defendant brings error.

Judgment reversed.

Dearing Chevrolet Company, to whom we shall refer as plaintiff, brought an action in the Superior Court of Chatham County, against J. C. Schuler, to whom we shall refer as defendant.

The petition of the plaintiff alleges in substance that the plaintiff is an authorized Chevrolet dealer in Savannah; that on July 23, 1947, it sold a certain described new Chevrolet automobile for $1,-596.00; that at the time of said purchase defendant agreed in writing in consideration of $1 and of the sale of said automobile to him, that if he should decide to sell the car within a period of 6 months that he would give plaintiff an option of first refusal to re-purchase automobile for the original purchase price of $1,596.00. A copy of said document is attached to the petition, made a part thereof and is set forth fully as follows: "Dearing Chevrolet Company, 43-49 West Broad Street, Sanvannah, Georgia, July 23, 1947. The undersigned has this day purchased from Dearing Chevrolet Company the following described automobile; 1 New 1947 Chev. Fleetline Sportmaster Motor No.EAA-283959 Serial No. 8 EKG-20622 at a price of $1,596.00, In consideration of the sale of this automobile to me and the payment of one (1.00) Dollar by Dearing Chevrolet Company, the receipt of which I acknowledge I hereby agree that in the event I should decide to sell or dispose of the above car within a period of six (6) months from the above date to give to Dearing Chevrolet Company, its successors or assigns, the first refusal of such automobile for the purchase price above named, that is $1596.00, before I sell or dispose of it. The option which I have given Dearing Chevrolet Company to repurchase the automobile if I should decide to sell same within six month shall be binding upon my heirs, executors and assigns, (s) J. C. Schuler, Jr. (L.S.) Witness my hand and seal, Signed, sealed and delivered in presence of; (S) Geo. B. Williams Notary Public, Chatham County, Georgia."

The petition further alleges that on or about the date of this purchase, the defendant sold the automobile to Bedgood Motor Company, a used car dealer in Savannah, for a profit which plaintiff is advised and believes amounts to $500; this sale is alleged to have been made without giving the plaintiff the opportunity to repurchase and that said sale to Bedgood Motor Company constitutes a wilful breach of the contract. Paragraph 7 of the petion is as follows: "By reason of said breach of contract plaintiff has been endamaged in the amount of $500.00 representing the value of said automobile over and above the repurchase price stipulated in said option agreement, Said contract was entered into in bad faith by the defendant in that the Chevrolet Automobile in question was purchased by him with the purpose and intent of reselling same immediately thereafter for a large profit. Petitioner shows that if the car had beenoffered to it for repurchase, as the contract called for, it would have exercised the option to rebuy it. If petitioner desired, said car could have been resold by it, after exercise of the option, for a much higher price than $2000.00 in view of the active market for new Chevrolet cars. However, in actuality petitioner would not have resold said car above the list price which it adheres to. For said reasons any sums recovered by it on account of defendant's breach of contract will be contributed by petitioner to some worthy charitable cause." Paragraph 8 of petition is as follows: "Because of defendant's bad faith in the premises petioner is entitled to recover reasonable attorneys fees and other expenses of litigation in the amount of not less than $150.00 for which he sues in addition to the damages hereinabove set forth." The petition prays for a judgment in the sum of $600.00. The defendant demurred generally to said petition because: "1. The matters and facts set out in said petition do not constitute any cause of action against this defendant; 2. The petition sets forth no cause of action, because the petition shows upon its face that the plaintiff has not been damaged; 3. The petition sets forth no cause of action, because the petition shows upon its face that the alleged damages sought to be recovered by the plaintiff are remote, speculative and uncertain; 4. The petition sets forth no cause of action, because, (a) If the said instrument is an option, the same is void and can not be enforced for the reason that the optionor, the defendant in this case, was and is not bound to sell, (b) If the instrument sued upon is not an option but a contract, the same is void by reason of the fact that it lacks mutuality and is unilaterial, (c) The said alleged instrument, whether a contract or an option, is void, by reason of indefiniteness and uncertainty."

The defendant also specially demurred to said petition because: "1. The allegation in the seventh paragraph of the petition, to-wit, 'If petitioner desired, said car could have been resold by it, after exercise of the option, for a much higher price than $2000 in view of the active market for new Chevrolet cars, ' should be stricken from said petition, for the reason--(a) It con tains a conclusion of the pleader, (b) The allegation is speculative, remote, indefinite and...