Takahashi v. Pepper Tank & Contracting Company

• Decision Date: 24 November 1942
• Docket Number: 2218
• Parties: TAKAHASHI v. PEPPER TANK & CONTRACTING COMPANY ET AL
• Court: Wyoming Supreme Court

131 P.2d 339

58 Wyo. 330

TAKAHASHI v. PEPPER TANK & CONTRACTING COMPANY ET AL

No. 2218

Supreme Court of Wyoming

November 24, 1942

ERROR to District Court, Natrona County, HARRY P. ILSLEY, Judge.

Action by C. T. Takahashi, operating under the trade-name of C. T Takahashi & Company, against the Pepper Tank & Contracting Company and another, for specific performance of a contract for the sale of personal property, and for an injunction wherein defendants filed a demurrer. To review an adverse judgment after sustaining of the demurrer, the plaintiff brings error.

Affirmed.

For the plaintiff in error, there was a brief by R. H. Nichols and S. J. Lewis of Casper, and oral argument by Mr. Lewis.

Plaintiff brought the action for a specific performance of a contract wherein defendants sold to plaintiff eight dismantled 80,000 barrel steel storage tanks. Five of the tanks were delivered. Defendants extended the time within which plaintiff could call for delivery of the last three involved tanks, and thereafter defendant refused to comply with plaintiff's call for such delivery. This action was filed on April 15, 1941, and a temporary restraining order enjoining defendants from selling said three undelivered tanks to other persons was issued by the court. A demurrer to the petition was sustained and plaintiff filed his amended petition on June 7, 1941. Application was made for a change of judge and a demurrer was filed to plaintiff's amended petition, and a motion to dissolve the temporary restraining order was sustained. Plaintiff declined to plead further and judgment was rendered on July 16, 1941, in favor of defendants and against plaintiff. Plaintiff seeks a reversal of said judgment. Plaintiff's petition alleged that it was without a remedy at law; that it had contracted to resell said tanks; that it was impossible to determine the amount of plaintiff's damages; that similar tanks or material were not obtainable on the market. Even without the benefit of the Uniform Sales Act in Wyoming, plaintiff's amended petition was amply sufficient as against demurrer to state a cause of action for specific performance. 4 Pomeroy's Equity Jurisprudence, 4th Edition, Section 1402, p. 3323; Ridenbaugh v. Thayer (Idaho) 80 P. 229; Strause v. Berger (Penn.) 69 A. 818; Lumber Company v. Inv. Co. (Colo.) 133 P. 1112; White Company v. Lumber Company (Mich.) 172 N.W. 603; Texas Company v. Oil Company, 194 F. 1; Kann v. Wausau Company (N. H.) 129 A. 374. Wyoming Sales Act, § 98-1602-3, R. S. 1931; 2 Restatement of the Law of Contracts 635; Eastern Rolling Mill Company v. Michlovitz, 145 A. 378; Cassinelli v. Supply Company (Nev.) 183 P. 523. Where the remedy in damages is inadequate, specific performance will be granted. Restatement of the Law of Contracts, Secs. 358-61. Equitable remedies are to be liberally construed under our Code. Sec. 89-102, W.R.S. 1931. The exercise of sound discretion by the trial court will not be disturbed. Anderson v. Englehart, 18 Wyo. 409; Weaver v. Richardson, 21 Wyo. 343; Collins v. Stanley, 15 Wyo. 282; Stowe v. Powers, 19 Wyo. 291. There is a complete distinction between exercise of judicial discretion by a trial court before and after hearing on the merits. Section 89-1603, R. S. 1931. The contract between the parties contained a stamp reading "export purchase for shipment to Japan." Defendants improperly informed the court in argument that after January 31, 1941, no export of the material was permitted to Japan, because no authority could be secured from the United States Government, but defendants had waived such statement on the contract by defendants' delivery after said date, of the material from the other five tanks covered by the contract. Chicago Daily News v. Kohler, 196 N.E. 445. There is nothing in the record, proper or improper, prohibiting fulfillment of the contract by reason of any government regulation or other cause beyond control of either party. Mears Company v. Walley, 71 F.2d 876. The trial court erred in dissolving the injunction. 2 High on Injunctions, 4th Ed. Secs. 1121-1122; 4 Pomeroy's Equity Jurisprudence 3935; Stowe v. Powers, 19 Wyo. 291; Weaver v. Richardson, supra; Collins v. Stanley, supra; Anderson v. Englehart, supra. No oral testimony was offered at the hearing in the trial court on the motion to dissolve the injunction. This court has held on a motion to dissolve an attachment that courts are reluctant to decide matters that go to the merits of a cause of action. Flaks, Inc. v. DeBerry, 53 Wyo. 203. We believe such to be the general rule. White Company v. Lumber Company, supra; American Smelting Company v. Mining Company (Ore.) 248 F. 172; Great Lakes etc. v. Scranton Coal Company, 239 F. 603; Lowry v. Cole, 130 P. 410; Rice v. Dougherty, 184 F. 878; Texas Company v. Central Fuel Company, 194 F. 1; Southern Iron & Equipment Company v. Vaughan, 78 So. 212. In this case, a complete lack of remedy at law was pleaded, stood undenied on demurrer, was fully substantiated in argument on injunction phases and final decree of specific performance herein will terminate this litigation, requiring no further supervision or direction by the Court of any kind, and Wyoming has a statute authorizing specific performance of contracts for sale of personal property. The state of Alabama has no such statute, thus distinguishing the Alabama decision from the case at bar. The order and judgment of the trial court should be reversed.

For the defendants in error, there was a brief and an oral argument by Carl L. Sackett of Cheyenne.

Plaintiff's petition fails to allege damages but contains a prayer for damages. The case stands merely as one for equitable relief. Specific performance with reference to personal property will not be granted unless damages are alleged. Joseph E. Pepper was not a party to the alleged contract. The alleged "contract" is a mere proposition containing no agreement to buy, to pay and there is no consideration or mutuality. It expired January 31, 1941. The government embargo on shipments of steel tanks to Japan terminated the transaction. Defendants' demurrer was properly sustained. Five of the eight tanks had been delivered. The remaining three steel tanks were to be delivered on call. The pretended "call" contained no promise to pay and no tender. It was not alleged that defendants were insolvent. The name of the repurchaser from plaintiff is not alleged. The pretended injunction issued by the court commissioner was void and was properly dissolved. Truly v. Wanzer, 5 Howard 141; 32 C. J. 33, 36, 308; Stowe v. Powers, 19 Wyo. 291; 58 C. J. 1147, 1157, 1159; 5 Pomeroy's Eq. Jur. 4910, 4911. An extension of a contract must be supported by a consideration. Blue Valley Creamery Co. v. Consolidated, 81 F.2d 182; Ide v. Leiser (Mont.) 24 P. 695. Mere acceptance does not make a contract or furnish consideration. Cohen v. Clayton Coal Co. (Colo.) 281 P. 111; Ellis v. Dodge Bros., 237 F. 860. Where negotiations are concluded with a writing, the writing prevails. Sugar Corp. v. Mason, 23 F.2d 436; Pleasant v. Company, 267 P. 794; 58 C. J. 1157. The transaction was within the statute of frauds. Sec. 98-202, R. S. 1931. Pepper never signed the contract. The trial court's exercise of discretion, unless abused, will not be reversed. Southern Equipment Co. v. Vaughan (Ala.) 78 So. 212. Specific performance will not be decreed where there is no mutuality. Rehm-Zeiher Company v. Walker Company (Ky.) 160 S.W. 777; Cohen v. Clayton Coal Co. (Colo.) 281 P. 111; Ellis v. Dodge Bros., supra. The expression "and/or" used with reference to the name of the seller is meaningless. Employers' v. Tollefsen (Wis.) 263 N.W. 376; Putname v. Industrial Com. (Utah) 14 P.2d 973. The petition was insufficient. Veli Motor Co. v. Kopmeier Motor Car Co., 194 F. 324; American Co. v. Kirk, 68 F. 791; Walker Mfg. Co. v. Swift & Co., 200 F. 529. The government embargo terminated the transaction. Truscon Steel Co. v. Cooke, 98 F.2d 905; Rodesch v. Kirkpatrick Coal Co., 41 F.2d 518. The agreement was endorsed "Export Purchase for Shipment to Japan." Courts take judicial notice of such provisions. Lawrenceburg Mills Co. v. Jones (Ala.) 85 So. 719; Mawhinney v. Woolen Mills (N. Y.) 132 N.E. 93; Moller v. Herring, 255 F. 670; Jersey Ice Cream Co. v. Banner Cone Co. (Ala.) 86 So. 382. The embargo was made effective February 6, 1941. The injunction by the court commissioner was void. Huhn v. Quinn, 21 Wyo. 51. The cases cited in plaintiff's brief do not appear to be controlling or decisive of the matters presented by the petition in error. We believe an examination of them will justify this statement and for that reason we forbear encumbering the record by a review of them. The judgment of the trial court should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action, commenced April 15, 1941, for specific performance of a contract for the sale of personal property. A demurrer to the amended petition on the ground that the latter fails to state a cause of action was sustained, and plaintiff standing on his amended petition, judgment was entered against him, from which he has appealed to this court. A preliminary injunction issued herein was dissolved, and the action of the court in that connection, too, has been brought to this court. For convenience the parties will be referred to as seller and buyer, or, as in the court below, as plaintiff and defendant, and as though Joseph E. Pepper were the only defendant, since he appears to be in control of his co-defendant company, and transacted all of its business.

The contract in question, leaving out some minor provisions not material herein, is as follows:

"C T. Takahashi & Company, Importers and Exporters, Seattle, U.S.A....