Thayer v. Smith
| Decision Date | 29 December 1960 |
| Docket Number | No. 2952,2952 |
| Citation | 357 P.2d 1115 |
| Parties | Carl A. THAYER and Carrie G. Thayer, Appellants (Plaintiffs below), v. Raymond SMITH d/b/a Casper Trailer Sales, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Winter, Burgess & Forrister, Robert A. Burgess, Casper, for appellants.
Mahoney, Murphy & Emery, J. F. Mahoney, Casper, for appellee.
Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.
This is a suit by Carl A. and Carrie G. Thayer, husband and wife, against Raymond Smith for damages 1 said to be caused by defendant's failure to issue a bill of sale for a trailer house sold by him to plaintiffs and their consequent inability to move and utilize it. Defendant filed a general denial and alleged as an affirmative defense that plaintiffs' cause of action constituted an agreement in violation of the laws of the State of Wyoming.
According to plaintiffs' version of the transaction, they were interested in the purchase of a trailer house and about May 24, 1958, inspected a Geer model, quoted at $7,475, in defendant's stock, offered him in a trade therefor their used trailer and $4,500 in cash which amount was to include sales tax. Smith refused this offer but later, on May 29, stopped at plaintiffs' Glenrock place, and as Thayer put it, said 'he would deal my way.' Thayer said he would talk the matter over with his wife who was not then present. Later, Mrs. Thayer called defendant's place of business, verified with the person answering the phone that the $4,500 and the old trailer house would cover the new one, including sales tax, and requested delivery. On June 3, Goodman, an employee of defendant, delivered the trailer, said that he understood the $4,500 included the sales tax, took Mrs. Thayer's check bearing the notation, 'For 1958 Geer 46'-10' wide trailer house including sales tax of $149.50.' Plaintiffs gave Goodman the title to their old trailer, and he said that they would receive title to the new one in about ten days. When the title was not sent and plaintiffs could not secure a license and move the trailer to Thayer's new place of work, he contacted defendant both by phone and letter. Smith then advised them that the $4,500 check did not cover sales tax which was $132, not $149.50, and that they would receive no title until they paid the tax.
According to defendant's version of the transaction, Smith had no recollection of having seen the Thayers on the trailer lot, but a memorandum was left on his desk that they wished to deal for a trailer. He went to Glenrock, talked to Thayer, offered to trade for $4,700 or $4,800, but Thayer was not interested. When Thayer did not come in during the next three or four days, Smith stopped to see him in Glenrock, and the two discussed a difference of $4,500 which Thayer did not accept, and Smith went on to Denver. While he was there his office called about the deal; Smith instructed Goodman to make delivery of the new trailer house and bring title for the old one, saying he would take care of financial details when he arrived back in Casper. Smith said that Goodman was a mere delivery boy with no authority to make contracts. He denied that there was ever any conversation with Thayer about the sales tax or that it was to be included in the purchase price. About June 4 defendant returned to his place of business, found plaintiffs' check, wrote on it and cashed it. Later, at a time which he did not specify, defendant made up a statement of the transaction showing:
'Bona Fide Cash Selling Price $6600.00--Tax
$132.00 $6732.00
* * *
* * *
'Cash Down Payment $4500.00
'Trade-in: * * * $2100.00 * * *'
The Thayers, however, were not sent a copy of this statement. Goodman said that when he delivered the trailer house Mrs. Thayer asked him if the $4,500 included the sales tax and he answered that he did not believe so but that she could talk to Smith when he got back from Denver.
The court entered judgment denying the complaint and assessing costs against plaintiffs, reciting as findings of fact the purchase of the trailer house and the details of the check given therefor. As conclusions of law the court found that the equitable title to the trailer house was in plaintiffs, that the legal title was in defendant, and that defendant by Wyoming law had a right to withhold title to the trailer house until the sales tax had been paid. Plaintiffs have appealed, contending that the findings, conclusions, and judgment of the court are unsupported in law, that the cashing of the check under the circumstances shown in the record was an accord and satisfaction, and that the title was improperly withheld. Defendant responds that any such agreement as contended for by the plaintiffs would be unlawful and contrary to public policy.
Defendant further insists that the question of accord and satisfaction was not previously raised and thus is improperly presented here. It seems to us that this question is the important issue in the controversy. Plaintiffs' principal contention is that defendant's cashing of the $4,500 check which showed on its face that it covered sales tax--despite Smith's notation to the contrary--was an accord and satisfaction; and we must first determine whether such point is properly argued here. The words 'accord and satisfaction' are not mentioned in the complaint, the pretrial order, or the judgment. However, the plaintiffs here stated in open court that this matter was the principal subject of the briefs in the trial court, and defendant made no denial. Moreover, it seems reasonable that this issue was raised in the trial court because the complaint did allege that the $4,500 included sales tax, which allegation was denied. The pretrial order recited the check situation and stated plaintiffs' insistence that the sales tax was included in the $4,500 check. The court, as findings of fact, listed the receipt by the defendant of the check with plaintiffs' notation 'For 1958 Geer 46'-10' wide trailer house including sales tax of $149.50,' defendant's placing on the bottom of said check the words, and the depositing of the check without notifying plaintiffs. Under these circumstances, the question of whether or not the cashing of the check constituted an accord and satisfaction was properly before the court for determination and must accordingly be considered here.
The general rule is well stated in 1 Am.Jur. (1936) Accord and Satisfaction § 24, wherein it is said:
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...369 P.2d 296; and Western Air Lines v. Hollenbeck, 1951, 124 Colo. 130, 235 P.2d 792. We do not set aside the holding in Thayer v. Smith, Wyo.1960, 357 P.2d 1115, where the check delivered in accord and satisfaction was clear in its notation and was accepted in full satisfaction of the debt......
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