Williams v. Long
Decision Date | 17 June 1965 |
Docket Number | CA-CIV |
Citation | 402 P.2d 1006,1 Ariz.App. 330 |
Parties | Carl WILLIAMS and Irene Williams, his wife, Appellants, v. C. W. LONG, d/b/a Long's Furniture Company, Appellee. * 293. |
Court | Arizona Court of Appeals |
Struckmeyer & Whitney, by James A. Struckmeyer, Phoenix, for appellants.
Jennings, Strouss, Salmon & Trask, by Ozell Trask, Phoenix, for appellee.
This is an appeal by Carl Williams, et ux, [defendants below], from a money judgment entered against them in an action brought by plaintiff, C. W. Long, d/b/a Long's Furniture Company, for the purchase price of certain kitchen cabinets and appliances. The case was tried to the court, sitting without a jury.
The principal dispute between the parties is whether there was an agreement that the goods sold would be 'factory-fresh' in their original creates or cartons when received by the defendants.
The amended complaint was in three separate and alternative counts: Court One prayed for specific performance for the reason that the equipment in question was unique and there was no adequate remedy at law; Count Two requested relief under A.R.S. § 44-263, subsec. A of the Sales Act which authorizes a seller to maintain an action against a buyer for the purchase price of goods where title has passed to the buyer; in Count Three relief was sought under A.R.S. § 44-263, subsec. C to recover the purchase price where title has not passed but the goods cannot readily be resold for a reasonable price.
At the conclusion of the trial, the court entered judgment in favor of the plaintiff and against the defendants in accordance with Count Two and Count Three of the complaint for the principal sum of $4,202.83 less the sum of $2,000.00, which was the amount obtained from a court-ordered sale of the merchandise, leaving a net judgment in the sum of $2,202.83 plus costs and $1,000.00 for reasonable attorney's fees. There is no complaint made on appeal that the court during the pendency of the action ordered the merchandise sold.
A summary of the facts, stated in the light favorable to the decision of the trial court, are:
For some six months prior to Christmas of 1961, salesmen in the plaintiff's store had been aware that the defendant were contemplating a new kitchen in their home. A bedroom was to be revamped into a modern kitchen. From contacts made with these prospective buyers, plaintiff had become aware that Mrs. Williams had a weakness for pink-colored appliances. With the hope of making a sale, plaintiff ordered a clothes washer and a dryer, pink in color, and had been on his floor by early December 1961. The Williams were not informed that this equipment was ordered for them. Ordinarily the plaintiff did not keep any pink appliances in stock, as there was no demand for them in the Town of Safford, where plaintiff's store is located.
The Williams were finally sold on a complete set of appliances and cabinets for their new kitchen on February 13, 1962. Written orders for the items contained descriptions by standard stock numbers of the manufacturer. Each cabinet, however, was specially made to size after the order was placed, so that the cabinets and appliances would fit into the Williams' new kitchen. The kitchen was pink throughout, and some of the appliances were 'special' in that only the front of the appliance was finished in the pink color, the sides being left unfinished because it was to be a 'built-in' kitechen. The refrigerator had no ice making capacity because a special ice making machine was ordered.
The plaintiff, who had been in the furniture business in Safford for thirty years, testified that the items ordered could not be readily resold and that he could not return them to the manufacturer. There was no contrary testimony.
When Mrs. Williams learned that the washer and dryer were to be delivered to her from plaintiff's floor, she protested that these were not 'factory-fresh,' and for this sole reason the delivery of all the merchandise was refused. When plaintiff subsequently specially ordered another washer and dryer which was offered to be delivered to defendants, they were declined unless the plaintiff paid the attorney's fee the defendants had incurred in the interim. This the plaintiff refused to do.
The washer and dryer which were on the plaintiff's floor were exactly the color, type, and model ordered by the defendants. It appears undisputed that the units in question were the latest models, had never been used or demonstrated and were in every respect as good as new. The written orders are silent as to whether the merchandise was to be delivered to the buyer in the original cartons in which it was packed by the manufacturer. The plaintiff testified there was no special agreement on this subject. On appeal, this court must accept this version as being correct. Nash v. Goor, 94 Ariz. 316, 383, P.2d 871 [1963].
One of the assignments of error is that when attempt was made by defendants to prove that the goods were agreed to be 'factory-fresh,' plaintiff's objection was sustained. However, there was no offer of proof made in connection with the testimony so excluded, so that ordinarily no reversible error could be predicated thereon. Rule 43(h), R.C.P. 16 A.R.S. Moreover, later in the trial, defendants' counsel was permitted to go into this subject fully, over objections; therefore any error in this connection was cured. Torosian v. Paulos, 82 Ariz. 304, 313 P.2d 382 [1957].
It is also assigned as error that the trial court erred for not having dismissed Court One of plaintiff's amended complaint which prayed for specific performance of the contract, for the reason that the written orders attached to the complaint established that the chattels in question were not unique. We fail to see how the defendants were prejudiced by this error, if in fact it was an error. The judgment granted is expressly stated to be based upon Counts Two and Three, which ask for relief under A.R.S. § 44-263 and not upon Count One which prays for specific performance. The defendants argue that they were prejudiced by the failure to dismiss Count One because in so doing the court deprived them of a jury trial. There is no merit in this contention. A party may have a jury trial on '* * * any issue triable of right by a jury * * *' [emphasis added], by making proper demand. Rule 38(b) R.C.P. The reason defendants did not receive a jury trial was because they did not demand one, and failure to demand constitutes a waiver. Rule 38(d) R.C.P.
Several assignments of error revolve around the question of whether the written contract between the parties precludes the plaintiff from recovering the purchase price, rather than monetary damages. The defendants contend that these writings having been attached to the pleadings, they controlled over any allegations therein, and that both Counts are therefore bad when attacked by a motion to dismiss. This court believes that if either Count stated a cause of action there is no reversible error in this regard. Mountain States Construction Company v. Riley, 88 Ariz. 335, 336 P.2d 648 [1960].
Counts Two and...
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