Wynn v. McMahon Ford Co.
| Decision Date | 21 March 1967 |
| Docket Number | No. 32519,32519 |
| Citation | 414 S.W.2d 330 |
| Parties | Peter E. WYNN, Plaintiff-Respondent, v. McMAHON FORD COMPANY, a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Melville A. Ochsner, St. Louis, for appellant.
Coleman, Ross & Cekovsky, Jack H. Ross, Sidney B. McClanahan, Clayton, for respondent.
TOWNSEND, Commissioner.
This is an action for damages arising on the breach of an alleged contract for the sale of a boat, a motor and a trailer. Plaintiff prevailed in the Magistrate Court and, on appeal, in the court-tried case in Circuit Court, plaintiff had a judgment for $350. This appeal followed.
Plaintiff testified to the following effect: Having heard from an undesignated person that a boat was for sale at the premises of defendant, he went to defendant's used car lot and there encountered Mr. Walton, used-car salesman, and inquired if they had a boat for sale. Mr. Walton answered in the affirmative and priced the boat at four hundred ninety-five dollars. (All references herein to 'boat' are intended to include the motor and trailer). Plaintiff inspected the boat and noted some minor defects; Walton asked if $20 would cover repair of the same. Upon plaintiff's affirmative answer to that question Walton then priced the boat at $475. Plaintiff then left to return the following evening to tell Walton whether he would take the boat. Upon that return he discussed the matter of a sale with Walton and Mr. Staley, used-car sales manager of defendant. As to Staley's participation in this conversation, plaintiff was asked: '* * * did you seek him out or did Woody (Walton) seek him out or--?' Answer: Plaintiff said that he would take the boat and asked if they would deliver it. Walton answered 'No.' The price of $475 was mentioned in the conversation with Staley and he knew of plaintiff's inability to then remove the boat owing to the lack of a trailer hitch; he indicated that it was satisfactory to sell the boat to plaintiff for $475. Plaintiff then paid $25 in cash on the price and said that he would return to remove the boat on the second day thereafter after procuring a trailer hitch with which to tow the boat. Staley volunteered that 'possibly they could find a hitch that would fit my car that would enable me to take it home.'
'Q. And did he suggest a time for you to come back to get the boat?
A. We discussed that, and I had to work Saturday at the Post Office, and after I got off work I told him that I would be out with the check, and I would have a way of taking the boat home possibly, and he said, well, he would try to have a hitch for me.
Q. Mr. Staley, is the person you're referring to?
A. That's right.'
On that day plaintiff asked Walton and Staley if they had the title to the boat and if it was clear and in response they stated that 'it was clear' and 'they told me that the title was in the safe.'
When plaintiff paid his $25 he asked for a receipt; Walton looked around for some paper and found only a pad of form contracts for used car sales. On one of such forms he wrote out what plaintiff maintains is only a receipt for the sum paid, and gave it to plaintiff stating that it was his receipt. As defendant contends that the instrument so delivered by Walton was an offer to buy the boat we digress here and set out the whole of the relevant parts of the instrument which was later put into evidence as defendant's Exhibit A:
CAR ORDER Date 1-30 1964
DEALER McMahon Ford
PURCHASER Peter E. Wynn
Please enter my order for one car as follows
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Make Model Color Type Year
Boat & Mtr. 1958
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Engine No. Serial No. To be delivered
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AS IS Tax
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TOTAL CASH DELIVERED PRICE 475 00
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Credits Deposit on order (AD) Woodie 25 00
Used Car Allowance xxxx
Less: Bal. owing to--
Cash on delivery Due 2/1/64 450 00
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RECORD OF TRADE-IN
NONE
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The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized. I hereby certify that no credit has been extended to me for the purchase of this car except as appears in writing on the face of this agreement.
I have read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. I certify that I am 21 years of age, or older, and hereby acknowledge receipt of a copy of this order.
Wo 2-0092
Ce 1-7920
Buyer's signature x Peter E. Wynn
Address x 1817 Kenilworth Dr
This order is not valid unless signed and accepted
by dealer
WOODIE Accepted by
Salesman ------------------
Dealer's Signature
Plaintiff further testified that on the designated day he returned to take delivery of the boat; he was accompanied by a friend with a car equipped with the necessary hitch. Staley then advised plaintiff that they could not deliver the boat because it was mortgaged; no mention of the 'receipt' above quoted was made. Plaintiff said that he would leave his deposit with defendant and that when the matter was cleared up he would still like to have the boat. Plaintiff departed but almost immediately returned for the purpose of talking to Mr. McMahon, president of defendant; he was informed that the latter was out of town and he then talked with Mr. Worn, defendant's new car sales manager, who informed him that he thought the boat belonged to Mr. McMahon and was not for sale. Two days later plaintiff had a telephone conversation with Staley in which he inquired why he had gotten two different stories from the defendant. Staley responded that the boat was mortgaged and that plaintiff probably wouldn't get it. That ended the conversation.
Mr. O'Brien, who accompanied plaintiff, corroborated plaintiff's statement that Staley told plaintiff that he couldn't have the boat and that there was a mortgage on it, and that there was no other reason given for refusal to deliver.
Foregoing for the moment consideration of the question of Staley's authority, the initial question in this case is whether otherwise an oral contract for the sale of the boat existed before the 'receipt' or 'order' was executed. Accordingly to plaintiff's testimony Walton had definitely told him that 'they' had a boat for sale and, after exhibition and inspection, priced it to him at $495; that price was reduced to $475 after plaintiff found some minor defects; on the next day plaintiff definitely told Walton and Staley that he would take the boat at the price of $475. At this point the necessary elements of offer and acceptance were present to bring a contract into existence if plaintiff's testimony is to be believed. Thereafter plaintiff paid $25 on the purchase price with a commitment to return the second day thereafter to pay the balance of the price, to take delivery and to tow the boat away, all with the acquiescence of Staley. Plaintiff asked for a receipt for the $25 and in response to that request he was given the instrument in question, which if taken at face value would change the existence relationship of the parties, as testified to by plaintiff, into a mere offer by plaintiff to buy.
Walton testified that after the 'receipt' or 'order' was signed he told plaintiff that he would 'submit the order to the house,' that is, 'to Al Staley,' and that he put it on Staley's desk. At a later point, he spoke again of having 'submitted the order.' His testimony by-passes any reference to a three-party conference--himself, Staley and plaintiff--as previously testified to by plaintiff, antedating the issuance of the 'receipt.' Staley endeavored to confine his testimony concerning his knowledge of the whole transaction to the instrument placed on his desk by Walton; he testified that the 'receipt' or 'order' was in existence before he ever talked with plaintiff and that it came to him 'originally' by Walton placing it on his deak. However upon cross-examination, although at first having no recollection of talking with plaintiff, upon further questioning he remembered that he discussed the sale of the boat with plaintiff, that the reason why plaintiff could not haul the boat away on the day the receipt was issued was the lack of a hitch, that the $475 deal was 'all right for me' and that he told plaintiff that he was glad to get the boat out of the storage shed so that he could have room in the shed.
The conflict of the testimony of plaintiff on the one hand and that of Walton and Staley on the other is apparent. Plaintiff's testimony would have the whole agreement completed before the receipt was issued by virtue of an offer made to him by Walton which plaintiff accepted the following day with the...
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