Trailmobile, Inc. v. Robinson
| Decision Date | 03 June 1957 |
| Docket Number | No. 5-1207,5-1207 |
| Citation | 227 Ark. 915,302 S.W.2d 786 |
| Parties | TRAILMOBILE, Inc., Appellant, v. Joe ROBINSON, Appellee. |
| Court | Arkansas Supreme Court |
Lovell & Evans, Springdale, and Darrell D. Dover, Little Rock, Ark., for appellant.
Crouch & Jones, Springdale, Russell Elrod, Siloam Springs, Wade & McAllister, Fayetteville, and DeLoss McKnight, Marianna, Ark., for appellee.
John Norman, a sales representative for Trailmobile, Inc., appellant herein, called upon Joe Robinson, appellee herein, who is engaged in the wholesale produce and trucking business in Springdale, Arkansas, for the purpose of soliciting an order for refrigerated trailers. Robinson was sufficiently interested in two used refrigerated trailers held by the company in Kansas City, and priced at $12,500 each, to go with Norman to Kansas City to examine them. On the return trip, appellee offered to purchase these refrigerated trailers for $23,800, and the following morning, after contacting company officials, Norman presented appellee with a sales order dated June 8, 1955, for two used 1955 CID 8512 Trailmobile Trailers with Thermo-Kings. On the next day, appellee executed his promissory note to appellant in the sum of $23,731.22, said note being secured by a chattel mortgage on the equipment purchased. This note was payable in thirty-five equal successive monthly installments in the amount of $659 each (final payment to be $666.22), commencing on July 10, 1955. The note provided for interest after maturity at the highest lawful rate, together with reasonable attorney's fees. It further provided that upon failure to pay any installment when due, all remaining installments should, at the option of the holder, become immediately due and payable. The chattel mortgage, of even date, securing the note, described the equipment as follows:
Name of Manufacturer's Type Description Year Other Identification
Manufacturer Serial Number and of Body
Model
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Trailmobile 1"00972 C"8512 Insulated Van 1955 Shiftable Tandem
Thermo-King
TK"5192
Trailmobile 1"00973 C"8512 Insulated Van 1955 Shiftable Tandem
Thermo-King
TK"8232
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The two trailers were delivered to appellee, one being equipped with a 1955 model Thermo-King refrigeration unit, and the other with a 1952 model Thermo-King refrigeration unit. The invoice showed the price of the trailers as $11,900 each. About three weeks after the purchase, the 1952 model Thermo-King unit 'broke down', and had to be repaired. A representative of Thermo-King sent a message to Robinson inquiring if he (appellee) knew that he had an 'old model Thermo-King on that new trailer.' Appellee, who had, a short time previously, sent a check to appellant as his first payment on the note, stopped payment on the check. No adjustment was made, and no further payment was made, and on the due date of the second payment, appellant filed suit on the note alleging it had elected to accelerate the entire balance of the note, seeking judgment for $23,731.22, together with 10% interest from July 10, 1955, and 10% of said sum as attorney's fees. An order of attachment for the property was sought and prayer was that the sheriff of Washington County hold the vehicles subject to the outcome of the action; that said vehicles be sold to satisfy the judgment, and 'the plaintiff herein have judgment for any deficiency between the sale price of the said vehicles and the cost of this action and the amount of said judgment against the defendant herein. * * *' Bond for specific attachment in the sum of $50,000 was made. Appellee filed a corporate surety bond in the sum of $23,731.22, plus interest thereon from July 10, 1955, at the rate of 10% per annum, and the costs of the action, conditioned that Robinson 'shall perform the judgment of the court in this action.' Robinson filed a general denial and a counterclaim alleging a breach of warranty, and asking for judgment for $4,000. An amendment was filed to the counterclaim and later an amended and substituted counterclaim was filed. After the filing of additional pleadings by appellant, the cause was set for trial for March 16, 1956. On March 15, appellee filed an amendment to his amended and substituted counterclaim. The gist of appellee's contentions, as set forth in the pleadings, was that he did not receive the kind of Thermo-Kings that he was supposed to receive under the contract; that he was due two used 1955 models, but instead, received one 1955 model and one 1952 model; that the 1952 model was defective and unfit for the purpose for which it was purchased; that appellant refused to make any adjustment, and had breached the contract. The following day, appellant filed its motion to strike said amendment from the pleadings. The court declined to do so, and the cause proceeded to trial. At the conclusion of the evidence, the jury returned a verdict for appellant in the amount of $20,931.22, plus interest from July 10, 1955. Subsequent thereto, appellee filed motion for judgment notwithstanding verdict, setting up that the jury, in finding that appellee was entitled to a credit in the amount of $2,800, actually found that appellee was not in default at the time of the filing of the suit and issuance of attachment, and that a proper instruction and form of verdict would have given the jury an opportunity to specifically find that appellee was not in default of the note sued upon, and that appellant accordingly was not entitled to accelerate the indebtedness. Appellant filed its response to the motion setting up that it should be overruled in all particulars, and on April 19, 1956, the court entered the following judgment in compliance with the motion:
'On this the 16th day of March, 1956, this cause comes on to be heard. The plaintiff appearing in person and by attorneys and the defendant appearing in person and by attorneys; whereupon, both parties announced ready trial.
'A jury composed of Bob Stout and eleven others of the regular panel of petit jurors of this court was selected and impaneled and sworn according to law to try the issues of fact arising in this case; and after hearing all the evidence introduced; the instruction of the Court and the argument of counsel, the said jury retired to consider its verdict; and after deliberating thereon, returned into Court the following verdict:
whereupon defendant, Joe Robinson, filed Motion for Judgment notwithstanding Verdict on March 28, 1956, to which Motion plaintiff Trailmobile, filed Response dated April 5, 1956. The Court, having taken the Motion For Judgment and Response under advisement, finds as follows:
'1. That plaintiff, Trailmobile, filed writ of attachment and posted surety bond at commencement of suit, August 10, 1955, to recover $23,731.22 principal and interest on note.
'2. That defendant, Joe Robinson posted surety bond in the sum of $23,731.22, signed by The Employer's Liability Assurance Cor. Ltd. dated August 11, 1955, guaranteeing to pay any judgment of the Court and that posting of said surety bond constituted tender and that Joe Robinson was not in default at time of filing of suit or at any time during pendency of this suit.
'3. That Joe Robinson filed counterclaim for $4,000.00 and that the jury found defendant, Joe Robinson, was entitled to $2,800.00 set off against claim of plaintiff.
'4. That Joe Robinson has tendered into Court, on March 20, 1956, and April 10, 1956, the sum of $3,790.00, as balance of principal and $85.13 interest on payments due on July 10, August 10, September 10, October 10, November 10 and December 10, 1955, and January 10, February 10, March 10 and April 10, 1956.
'It is, therefore, ordered and adjudged, that Trailmobile, Inc., do have and recover of and from Joe Pobinson, the sum of $3,790.00 and $85.13 interest, which sums having been tendered into Court are ordered paid to plaintiff by the Clerk of this Court and that the said judgment in the sum of $3,875.13 is thereupon satisfied in full.
'Judgment prepared and entered this 19th day of April, 1956.
'Circuit Judge'
From said judgment, appellant brings this appeal, basing its contention for reversal on several alleged errors, which we shall proceed to discuss.
It is first contended that the court erred in refusing to grant appellant's motion to strike the amendment to the amended and substituted counterclaim. As this Court has many times said, the matter of permitting amendments to pleadings is one that lies largely within the province of the trial court. Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W.2d 773. Nor does it appear that the issues were drastically changed by the amendment. No motion for continuance was filed by appellant, and we conclude that the court did not abuse its discretion in permitting the filing of the amendment.
It is next contended that the court erred in permitting parol evidence to explain the sales order signed by appellee. Appellant...
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...to the manifest intention of the jury, such as we had in Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 and in Trailmobile, Inc. v. Robinson, 227 Ark. 915, 302 S.W.2d 786. On the face of the verdict, the answers to the interrogatories appear to be inconsistent in view of appellant's testi......
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...of the jury, and carry their findings into effect, where the intention can be ascertained with certainty.' " Trailmobile v. Robinson, 227 Ark. 915, 925, 302 S.W.2d 786, 792 (1957) (quoting, with approval, Vol. 89, Corpus Juris Secundum, 198); accord Traylor v. Huntsman, 253 Ark. 704, 488 S.......
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