Wilcox v. Badger Motor Car Company

• Decision Date: 23 December 1915
• Docket Number: 18336
• Parties: MARGARET M. WILCOX, APPELLEE, v. BADGER MOTOR CAR COMPANY, APPELLANT
• Court: Nebraska Supreme Court

155 N.W. 891

99 Neb. 189

MARGARET M. WILCOX, APPELLEE, v. BADGER MOTOR CAR COMPANY, APPELLANT

No. 18336

Supreme Court of Nebraska

December 23, 1915

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

John W Parish and Amos E. Henely, for appellant.

Rosewater & Cotner and Charles H. Marley, contra.

FAWCETT J. LETTON, J., not sitting. SEDGWICK, J., MORRISSEY, C. J., dissenting.

OPINION

FAWCETT, J.

On April 3, 1911, H. E. Wilcox, of Omaha, husband of plaintiff, entered into a written contract with the defendant for the purchase of two separate lots of automobiles, of four and three cars, respectively, and for the appointment of himself as agent for defendant in the sale of its cars. The four cars were described in the contract as "lot one" and the other three as "lot two." The contract provided that he was to pay for the four cars by conveying to defendant 200 acres of land in Custer county, and was to pay for the other three cars cash on delivery, or rather, cash before delivery. Upon delivery of the deed and an abstract showing good title to the Custer county land, defendant was to execute to Wilcox a bill of sale for the four cars in lot one. About 19 days later Wilcox advised defendant that the land belonged to plaintiff (his wife), and directed that the bill of sale to the four cars in lot one be made to her, and on April 26, 1911, the defendant did as directed. One of the cars in lot one was delivered by defendant. Two of the cars in lot one were shipped to H. E. Wilcox, together with one car of lot two. Wilcox paid for the one car in lot two, and the three cars were delivered, Wilcox receiving one and plaintiff two. Later defendant shipped to Wilcox the remaining one car of lot one and the remaining two cars of lot two. Wilcox failed to pay for the two cars of lot two and they were not delivered to him, nor was the one car of lot one delivered to plaintiff. Thereupon plaintiff instituted this action and attached all three of the cars for the purpose of enabling her to recover her damages by reason of defendant's failure to deliver the fourth car of lot one. Defendant gave the necessary bond provided by our statute, and all three of the cars were returned to it at its factory in Columbus, Wisconsin. Defendant filed an answer in the action, in which it claimed that the contract for the seven cars was an entire contract, and counterclaimed for damages by reason of the failure of Wilcox to pay for and receive the two cars of lot two. The trial court held that the contract was divisible and refused to submit defendant's counterclaim to the jury, but submitted only the question of the value of the car of lot one which was not delivered to plaintiff. The jury returned a verdict in favor of plaintiff for $ 1,589.92. When considering the motion for a new trial, filed by defendant, the trial court stated that unless plaintiff filed "a remittitur on this verdict, so as to reduce it down to the sum of $ 1,164.50," a new trial would be granted. Thereupon, in open court, plaintiff consented to such remittitur, and judgment was entered for the reduced amount. From this judgment defendant appeals.

It is conceded by the parties that the principal question to be determined in this suit is whether or not the contract of April 3, 1911, is a contract entire or a divisible contract. The determination of this question requires a consideration of the contract of April 3 and the bill of sale of April 26. The latter having been given in compliance with requirements in the former, the two must be construed together in order to determine the rights of the parties.

The contract of April 3 appears to have been carefully drawn. The provisions relating to the sale of the four cars in lot one and the three cars in lot two are separate and distinct and contained in separate paragraphs. It first provides: "That the party of the first part has this day sold, and does hereby sell, to the second party 4 Badger automobiles, being 2 cars of type D, 1 car of type B, and 1 car of type C, all equipped as specified in the first party's catalogue of 1911, and in payment for said cars, the second party has agreed to convey to the first party, as soon as the title papers can be perfected, 200 acres of land in Custer county, Nebraska." Here follows the description of the land. It further provides that the lands will be conveyed by warranty deed, free from all incumbrances except a mortgage for $ 1,300, and interest on the same from the first of the month in which the contract was made; that an abstract is to be furnished, etc.; and that as soon as the deed and abstract are delivered to the first party it will ship one of the cars; and that the four automobiles covered by this sale shall be designated as "lot one." Here we find a separate and distinct sale by defendant to H. E. Wilcox of four cars designated as lot one, in consideration of the conveyance to defendant of 200 acres of land in Custer county, subject to a mortgage for $ 1,300.

The next paragraph provides: "It is further agreed that the first party has sold to the second party, and the second party has purchased, and does hereby purchase, from the party of the first part, in addition to lot one, 3 Badger automobiles, to be known and designated as lot two, to be delivered f. o. b. cars at Columbus, Wisconsin, within a reasonable time after being ordered, and on or before September 1, 1911, and that the second party shall pay for the automobiles in lot two the sum of $ 1,500 less a 25 per cent. discount per car for type D, and $ 1,250, less a discount of 20 per cent. for types B and C." It then provides for an additional discount for all cars which the party of the second part might sell in excess of five cars. Here we have a separate and distinct contract for the sale of three cars under a separate and distinct designation as lot two. It further provides: "It is further mutually agreed, that the second party shall have the option, as to lot two, of designating the number of automobiles he wishes of the three types above named." No such option is anywhere given in the contract as to the types of the cars to be delivered under lot one.

Then come two separate paragraphs of the contract which clearly show: First, how these cars were to be paid for; and, second, how they were to be delivered. The two paragraphs are as follows:

"It is further mutually...