Opinion
No. 158693.
1947-02-25
DE MOSS v. CONART MOTOR SALES, Inc.
Fred Cain, of Akron, for plaintiff. Hobart Roby, of Akron, for defendant.
Action by Carl J. DeMoss against Conart Motor Sales, Inc., a corporation, for specific performance of an alleged contract by defendant to sell plaintiff an automobile.
Judgment for plaintiff.Fred Cain, of Akron, for plaintiff. Hobart Roby, of Akron, for defendant.
WATTERS, Judge.
Briefly the claims of the parties are as follows: Plaintiff claims that on August 29, 1945, he entered into a contract to purchase a new Plymouth Club Coupe from the defendant Conart Motor Sales, Inc., an Ohio corporation and dealer in said cars; that he paid $50 down, and has been ready, willing and able to perform, but that defendant refuses to deliver to him such a car. Plaintiff asks specific performance.
Defendant admits that it is a corporation engaged as a dealer in the sale of said cars, but denies that it entered into a contract of sale with plaintiff; denies that Mr. Davis, defendant's employee, was an agent or servant to sell, and denies any binding contract was entered into, and denies that plaintiff is entitled to any relief except that Mr. Davis should return the $50 which defendant claims it never accepted on an order or otherwise, in that said Davis was unauthorized to accept the money or make a sales contract.
Finding of Fact.
The court finds that on August 29, 1945, plaintiff, Carl J. DeMoss, entered the show room of the defendant company, a dealer and distributor of Plymouth cars, on East Market Street, Akron, Ohio, to buy a new Plymouth Club Coupe; that there were no such cars then on hand; that he made known his desire to buy such a car to Mr. James A. Davis, who came up to him on the floor of the regular sales room; that Mr. Davis for some long time prior to August 29, 1945, had been a car salesman for the defendant, and that since said time said Mr. Davis has acted as a salesman for said company, and has sold many cars for it.
The court further finds that at said time in question, Mr. Davis was in fact and in law a car salesman for said company, and that he was likewise employed in part in the sale of car parts for said company, or otherwise in its separate ‘parts department’ across East Market Street about opposite the main building; that said Mr. Davis, as the duly authorized car salesman of the defendant, accepted plaintiff's offer and down payment of $50, and caused an order to be prepared on an order blank of said defendant company (‘Plaintiff's Exhibit A)’ entitled
‘Order to Conart Motor Sales Inc. C-13009.’
‘Date 8/29/1945.
For new Plymouth Club Coupe.
Price. List at time of delivery.
Stock No. _____
Extras
Trade $_____
Less Amount Owed $_____
License
To Be Financed
Total Down Payment
_____ Payments Cash Deposit $50.00
$_____ Per _____ Cash Before Delivery
Remarks Choice of Color
This agreement is given and accepted subject to conditions on reverse side of this order.
Signed Carl J. DeMoss
535 E. Cuy. Falls Ave.
Delivery date As soon as possible.
Accepted by Salesman J. A. Davis.'
Note of explanation: The matter italicized above is penciled writing in carbon copy, while the balance is the printed form.
Further Facts
The matter written in was written by the said J. A. Davis. ‘Exhibit A’ is a carbon copy of an original apparently held by the seller.
Note: I have not reproduced the printing on the reverse side of ‘Exhibit A’ which is no doubt a part of the contract.
The court further finds that from time to time after August 29, 1945, the defendant company received and sold and delivered to others than the plaintiff certain new Plymouth Club Coupe automobiles of the type contracted for by Plaintiff. Said sales and deliveries have occurred since August 29, 1945, and the time of the filing of the petition, and thereafter before January 13, 1947, the trial date of this case; that plaintiff's petition was filed October 11, 1946, and that the delivery date agreed upon ‘as soon as possible’ which the court interprets to be a reasonable time after August 29, 1945, under all the circumstances has long since passed, and passed long before October 11, 1946, the filing date of the petition, and of course long before the date of this trial.
The court further finds that the defendant company has without cause and arbitrarily refused plaintiff delivery of the car purchased, and that plaintiff has not an adequate remedy at law, and is entitled to specific performance of the contract.
The court finds that plaintiff returned numerous times to demand his purchase; that neither the defendant nor Mr. Davis ever tendered back the $50 deposit; that the salesman Davis did tell the plaintiff that he could have his money back; that Mr. Davis told plaintiff at one time that it might help if he, the plaintiff, secured a used car to trade in on the deal; taht the defendant or Mr. Davis did not finally refuse plaintiff definitely until a short time before the suit was commenced, when Mr. Sole, the sales manager, informed him that he could not have a car, which refusal was repeated by Mr. Sole on the witness stand.
The defendant company does not deny but that plaintiff was ready, willing and able to pay for the car in question.
It was a custom in the defendant's business to prefer returned veterans, physicians and old customers.
Findings of Law.
The findings of law have probably of necessity been mixed somewhat with the findings of fact.
The order given by Plaintiff at bar to the salesman, Mr. Davis, was an offer and was accepted by the salesman, Mr. Davis, with due authority from the company implied in law.
The salesman, Mr. Davis, was in fact and law defendant's salesman for the purpose, and in law authorized to accept plaintiff's offer to buy. The defendant is estopped to deny this in any event.
In Moskovitz v. White Bros., Inc., Sup., 166 N.Y.S. 15, 16, we find: Syllabus (3) ‘The signature of defendant's salesman to an order blank, furnished for selling automobiles, and marking the price and the deposit, containing all the terms of the sale, implies an acceptance of the order and a reciprocal agreement to sell.’ Also see paragraph (1-3) on page 16 of the opinion in 166 N.Y.S. See also Storage Co. v. Cox, 74 Ohio St. 284.
The item sold is and was at all times mentioned herein hard to get. You could not and cannot get a new car readily on the market. The defendant should specifically perform its contract with plaintiff.
As a matter of law and fact I hold that the defendant was entitled within reason to give preference to doctors, returned veterans and old customers before being duty bound to give plaintiff a car. I have taken that into consideration in interpreting the delivery date ‘as soon as possible.’ I think that reasonable time allowance has long since passed.
Can the defendant company even now deliberately refuse delivery after all this time? It certainly cannot lose anything. The plaintiff must pay the present list price at time of delivery plus sales tax, and so forth. All these matters are readily ascertainable.
There is nothing in the contract to the effect that plaintiff must have a ‘trade in’ or ‘used car’ to sell to defendant.
The defendant company and others can avoid any difficulty as encountered here by making an order or agreement which gives the company the right to exercise certain options, or by refusing to take any orders at all and/or other ways which can be worked out. As a matter of fact it is common knowledge that most dealers now simply place the name of the ‘prospect’ on their ‘list’ with the understanding by all concerned that neither party is legally bound to do anything. Someday things will be different.
This situation is of course not the proposition we have here. Counsel for the defendant point out the clause on the reverse side of the form which it is claimed gives the buyer the right to get out and cancel the purchase, in which case the seller keeps the deposit, and also to the clause that in case the seller refuses delivery, the purchaser reserves the right to cancel the order and then seller shall return the deposit.
But here the buyer is willing to perform, and has been right along. He does not seek damages, and in fact, due to the car market, has no adequate remedy at law.
In the first clause we have the words ‘for my failure to complete the purchase.’ This would indicate that the signed ‘order’ constituted it a contract.
In the second clause is contained the anguage, ‘purchaser reserves right to cancel order,’ and so forth.
These clauses do not in any way defeat the right of the plaintiff to demand and obtain specific performance. In the court's opinion, the equities of the case leave no other alternative. The plaintiff is asking for no more than is just and proper. Furthermore compliance with the court's order certainly works no hardship whatsoever on the defendant. It is only being ordered to perform its contract, which will result in a profit (commission) to it.
Defendant will procure plaintiff a car of type in question within the next 30 days.
Costs taxed against the defendant company.
Journal entry will be prepared in accordance with this decision, with exceptions to defendant.