In Boeving v. Vandover, 218 S.W.2d 175 (Mo.Ct.App. 1949), the court found that specific performance for the sale of a car was warranted during a shortage where "it was impossible to buy a car for immediate delivery without going on the black market and paying a bonus," and acquiring a car from another dealer might take one to two years.Summary of this case from Structural Polymer Group, Ltd. v. Zoltek Corporation
January 20, 1949. Rehearing Denied March 11, 1949.
1. — Appeal and Error. Suit for specific performance was equity case which Court of Appeals was required to try de novo, lending due deference to finding of trial court.
2. — Equity. Equity will not interfere where there is an adequate remedy at law for damages.
3. — Specific Performance. If like chattels cannot be readily purchased on market at times specified in contract for delivery of chattel, specific performance will generally be granted, if other necessary elements are present.
4. — Specific Performance. Where there is no adequate remedy at law, specific performance of a contract relating to personalty will be decreed.
5. — Specific Performance. Where automobile market was such that purchaser could not go upon the open market and purchase a new automobile at regular price, and to obtain one he would be required to purchase in the black market and pay a bonus, purchaser did not have an adequate remedy at law for breach by dealer of oral contract to sell new automobile, and contract would be specifically enforced, if other necessary elements were present.
6. — Specific Performance. Equity will determine the enforceability of a contract, as to certainty, completeness and mutuality, as of the date of demand for specific performance or at the time suit is filed.
7. — Specific Performance. Contract by dealer to sell new automobile was completed on date buyer viewed automobile, agreed to accept it and to pay purchase price in cash, and specific performance could not be denied because of any lack of completeness, certainty and mutuality as of the date dealer gave receipt to buyer and buyer made deposit on purchase price, though it was then indefinite as to type, style, series, color, date of delivery and purchase price.
8. — Specific Performance. Contract by dealer to sell new automobile was sufficiently definite as to price, as to be specifically enforced, from the time buyer made deposit and dealer put his name on waiting list, since price was determined by adding to manufacturer's price, the freight and expenses necessary for delivery, and the court would take judicial notice that price was fixed as of date of delivery.
9. — Sales. Where buyer sought specific performance of contract by dealer to sell new automobile, and there was conflict of testimony as to how automobile was to be paid for, but there was nothing mentioned about a trade-in, contract would be construed as one requiring the purchase price be paid in cash.
Appeal from the Circuit Court of Butler County. — Hon. Randolph H. Weber, Judge.
REVERSED AND REMANDED (With Directions).
Phillips Phillips for appellant.
When plaintiff paid to defendant and he accepted the $100.00 on the purchase price of a new Buick automobile, plaintiff then and there became the owner of such automobile later to come into the possession of the defendant, subject to defendant's right to retain possession thereof until the balance of the purchase price be paid and plaintiff would have the right to replevin such car from the defendant upon tendering such balance. Lumsden v. Howard, 236 S.W. l.c. 421 and cases cited; Krummenacher v. Choteau, 296 S.W. l.c. 257 and cases cited. It was later agreed that plaintiff would accept the 21st car in the place of the 12th car, plaintiff thereby became the owner of the 21st car subject to defendant's right of possession until balance of purchase price be paid and plaintiff upon tendering such balance could replevin the car from defendant, under the doctrine of the authorities, supra, if he had information as to when the car came into the possession of the defendant, which information, however, the plaintiff did not have. In addition defendant was deceived as to the date of its arrival, it being stated to him that the car would arrive around Christmas, when in fact it arrived on or before November 7th, and was immediately sold and delivered by the defendant to Dr. Markel without plaintiff's knowledge, consent or approval and his chance to replevin that car was thereby lost through the wrongful act of the defendant. What plaintiff is entitled to is the delivery to him by defendant of a new Buick automobile. Defendant says that if this be true we have a remedy at law that will compensate plaintiff in damages for the wrong done him. We say that an action at law for damages is not an adequate remedy so as to oust the jurisdiction of a court of Equity to enforce the sale of a pleasure car by specific performance. DeMoss v. Conart Motor Sales, Inc., 72 N.E. (L) 158 (Ohio). In order that a court of equity shall be ousted of jurisdiction it is not enough that plaintiff has a remedy at law but in addition the remedy which he has at law must be "An adequate remedy at law." 30 C.J.S. No. 25, p. 347 N. 57. "Where there is a question of doubt as to the adequacy of the legal remedy such doubt should be resolved in favor of the equitable jurisdiction." 30 C.J.S., ___. 350 N. 68. Whether there is an adequate remedy at law depends on the circumstances of each case. Same, No. 71. Clearness. Where the adequacy of the legal remedy is doubtful, and equity can give relief, plaintiff ought not to be compelled to speculate on the chance of his obtaining relief at law. The legal remedy must, therefore, be clear. It is sometimes said that it must be obvious. Completeness. Where a legal remedy is available but would afford only a partial protection of plaintiff's entire right, or would not entirely adjust the rights of the parties, such remedy is incomplete and inadequate, and for that reason equity will interpose even though an action is already pending at law. 30 C.J.S., No. 25, ___. 351. Equity will enforce the surrender of personal property which is of such a peculiar nature or value that its loss could not be compensated adequately in money. 30 C.J.S., No. 29B ___. 356. Equity jurisdiction to compel performance of contracts is not confined to those relating to realty. The general rule (that it is so confined) is subject to many exceptions partly founded on the principle of inadequacy of remedy at law in the particular case . . . Thus where there is no adequate remedy at law specific performance relating to personalty will be decreed provided the remedy is otherwise proper. So contracts relating to chattels which have an unique and peculiar value will be specifically enforced. Sale. The foregoing exception applies to the sale of personality, so that where the remedy is otherwise proper, and there is no adequate remedy at law, specific performance may be had by the purchaser or seller. Moreover, where a peculiar and special reason exists, specific performance may be had. 58 C.J. No. 250, p. 1035. Cases holding the same doctrine and taken from annotations of above. Young v. Cockman, 34 A.2d 428. Where legal remedy is inadequate specific performance of a contract for the sale of personalty will be decreed with the same freedom as in contract for the sale of land. Martindell v. Fiduciary Council, 3 O.A. 281, 133 N.J. Eq. 408, 26 A.2d 171; 131 N.J. Eq. 523. Plaintiff would not have an adequate remedy at law for damages against the defendant for failure, or refusal to deliver the car in question in view of the fact it was to be a pleasure car and loss to plaintiff for the pleasure of using it, to which he was entitled, would be too speculative to form a basis of recovery. Hunter v. Quaintance, 168 P. 918 (Colo.) In like manner damages for the loss of the pleasure of the society of a husband, wife or child is not allowed in an action for their death, in this state as being speculative. Truesdale v. Wheelock, 74 S.W.2d 585, 335 Mo. 924; Bolina v. Illinois Ter. R. Co., 200 S.W.2d 352; A.T.S.F.R. Co., v. Wilson, 48 F. 57, 1 C.C.A. 25; Schaub v. H. S.J., 106 Mo. 74; Death, Key No. 88. To the same effect mental anguish, pain and suffering alone are not compensable in damages. 25 C.J.S. No. 64, p. 550 and Mo. cases cited page 551. Plaintiff would not have an adequate remedy at law against defendant for the reason that the promised cars No. 12 and No. 21 had long since been delivered to innocent third party purchasers for value when plaintiff learned of defendant's breach of contract. Plaintiff could not file and maintain a general replevin suit and try and catch, with the writ the car that chanced to be in defendant's possession at the time the writ could be served for the reason that such cars as shown by the record are sold upon a down payment as a result of which under the Missouri cases cited under Point I supra, such parties become the legal owner of such vehicles subject to the seller's right of possession until the balance of the purchase price be paid. Under such circumstances, if plaintiff attempted to replevin, he could run into complications with innocent third party purchasers and could not successfully maintain his suit. 55 C.J. No. 1088, p. 1106 No. 50 citing Lumsden v. Howard, 210 Mo. App. 645, 236 S.W. 420; Poplin v. Brown, 200 Mo. App. 255, 205 S.W. 411; Sikes v. Freeman, 204 S.W. (App.) 948. Ilgenfritz v. Mo. P.R. Co., 169 Mo. App. 652, 155 S.W. 854; Glass v. Blazer, 91 Mo. App. 564. Plaintiff would not have an adequate remedy at law by buying another car from another concern on the open market and then suing defendant for the addition cost price that he would have to pay. In the first place there was no open market such as contemplated in the causes of action above referred to because the mechanics of the thing would be that he would have had to place his order with some dealer (he could not just select, buy and pay for a car), and then he would have to wait a number of months for delivery from the dealer after all his regular customers had been taken care of or at such time as he might see fit to make the delivery according to his own whim and caprice. In the instant case, the order was given on November 7, 1945, and tender of car was first made in the first part of September, 1946. For such waiting time, if plaintiff had purchased elsewhere, he could recover no damages at all. It is, perhaps true that plaintiff could have gone on the "Black Market," and bought a Buick car, but his act in so doing would have been a violation of law on his part as well as upon the part of the seller. "Where a seller fails or refuses to deliver the goods, the measure of damages of the buyer is ordinarily the difference between the contract price and the market price, or as it has otherwise been stated, the measure of damage is ordinarily computed as the difference between the contract price and the market value of the goods at the time and place of delivery provided there is a market price for the goods of the character and quantity contracted for at such time and place." 55 C.J. No. 1146 et seq. Mo. cases, Note 52. The market price should be taken as of the time of the breach of the contract unless the price at that particular time is unnaturally inflated or depressed by unlawful means. 55 C.J. No. 1151 page 1162. And the buyer is not required to purchase similar goods to mitigate his damages where such goods are not readily obtainable on the open market. 55 C.J. page 1172 N. 11 and cases cited. Where goods are unattainable elsewhere, duty of buyer to mitigate his damages by purchasing elsewhere does not apply. 55 C.J. page 1174 No. 1157; Weber Imp. Co., v. Acme Co., 187 S.W. l.c. 876 (for Cal. 2); Sales, Key No. 418 (7) 268 Mo. 363. Can it be successfully asserted that while plaintiff could not buy a car to take the place of the one denied him by defendant, still he could go to the "black market" and buy from the bootlegger and then recover as damages the difference between the contract price and what the bootlegger would charge him? Can defendant successfully contend that it was the duty of the plaintiff to go on the open market and buy a Buick car when there was no open market for such cars available? What kind of an adequate remedy at law did plaintiff have? Defendant contends that plaintiff as a part of the purchase price agreed to deliver to defendant plaintiff's used Buick car. Plaintiff denies that such an agreement was made, and even if it was, it would be within the Statute of Frauds as plaintiff's car was worth more than $30.00. No part of the purchase price was paid, nor note or memoranda in writing was signed by the parties to take the agreement if any out of the Statute of Frauds. Mo. R.S.A., No. 3355. There is another reason why even if such an agreement was made it would be unenforceable by defendant and that is the defendant admitted in its first answer (Tr. 6) "that plaintiff (agreed that he) would trade in his Special Buick Sedan on the purchase price of said new Buick automobile at a price to be agreed upon between the parties if and when the new Buick automobile was delivered to plaintiff by defendant." Defendant thus admitted that the trade in value or price was left open to be agreed upon later. This would also invalidate the contract to trade the car in if there ever was one. 55 C.J. page 68 No. 32 N. 39 citing Mo. cases. In the absence of an agreement otherwise providing, payment (on the purchase price of a sale) may be made only in money. 48 C.J. page 595 No. 15, N. 64 and 65, citing; Sutton v. Libby (App), 201 S.W. 615; McCormick v. Obanion, 168 Mo. App. 606, 153 SK 267; Howe v. Mikelberg, 96 Mo. App. 490. Last case cited holds that the expression "payment of money or property" is inexact because the word payment conveys the idea of a money transaction." Payment of an obligation ordinarily must be made in money. Steward v. Evatt, 56 N.E.2d 159, 143 Ohio St., 547. Creditors acceptance from debtor of something other than money does not constitute payment or satisfaction of debt in absence of express or implied agreement that it will be so considered. Same v. Same, supra. A note legally imparts a promise to pay in money and nothing else, and, when a debt is thus payable in money according to the tenure of the obligation, it can be paid in other things only by an agreement of the debtor to give and the creditor to receive something else in satisfaction which must be actually given, received and accepted as such. Sutton v. Libby, 201 S.W. 615 (App). The law implies, however, if no time is fixed for delivery, it shall be made within a reasonable time. 55 C.J. 342 citing; Smith v. Shell, 82 Mo. 215; Union etc. Co. v. Milne Lbr. Co., 251 S.W. 464 (App.); Vantress v. Trumble, 214 Mo. App. 30, 251 S.W. 396; Brown etc. Co. v. Universal etc., 212 Mo. App. 249 S.W. 128; Heller v. Ferguson, 189 Mo. App. 484, 176 S.W. 1126; Metropolitan etc. Co. v. Broderick etc., 156 Mo. App. 640, 137 S.W. 633.
Byron Kearby for respondent.
"It is common knowledge that standard cars are held for sale by dealers at schedule prices, even when old or used cars are traded in, and where the agreed price is in dispute, and it is the seller's word against the buyer's, the trial court has a large discretion in admitting testimony of collateral matters tending to show which of the two conflicting stories is the more probable." Baltrusch v. Braulick, 236 N.W. 924. 183 Minn. 470. In an action by a buyer against the seller of an automobile for its conversion the measure of damages will ordinarily be its market value at time of conversion plus interest to date of verdict less balance due on purchase price with interest. Kuzemka v. Gregory, 146 A. 17, 109 Conn. 117. If the buyer of an automobile pays part of the purchase price and tenders the balance to the seller, who refuses the tender and wrongfully sells the car to another, the buyer's measure of damages is not necessarily the amount paid by him, but the fair market value of the car at the time of the wrongful refusal to deliver the car, not exceeding the purchase price, less the balance due on the price. Epley v. Commercial Credit Co., 135 S.E. 776. 192 N.C. 661. An automobile being a chattel commonly sold in the market, the measure of damages for failure to deliver is ordinarily, in accordance with the rules applicable to goods generally, the difference between the contract price, and the market value at the time stipulated for delivery, C.J. 42, pg. 771, par. 295 bb. Unless the special use to which the buyer intended to put the car was made known to the seller, damages cannot be recovered for loss arising from inability to make such use, as for loss of profits in the buyer's business in which he intended to use the car. C.J. 62 pg. 771, par. 295 bb. A contract is an agreement which creates an obligation. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation. C.J.S. 17, pg. 310. An agreement between two or more parties, competent for that purpose upon a sufficient consideration, to do or not to do a particular thing, which lawfully may be done or omitted. Smith v. Martin, 185 P. 236, 238, 94; Or. 132 — Feenaughty v. Beall, 178 P. 600, 602. 91 Or. 654. An agreement between two or more parties, the preliminary step in making of which is the offer by one and the acceptance by other, in which the minds of the two parties meet and concur in the understanding of the terms. Lee v. Travelers Ins. Co. of Hartford, Conn., 175 S.E. 429, 433, 173 S.C. 185. Elements of a valid sale is meeting of minds of parties or mutual agreement as to terms of sale or contract. Randolph v. Martin, 86 S.W.2d 189. In present sale which price to be determined at future date, said date must be designated, time limit set or reasonable time understood. Jensen v. Turner Bros., 16 S.W.2d 742. Absence of definite time for ascertaining future price renders contract void for uncertainty. Jensen v. Turner Bros., supra. An essential element of sale of personalty is a money price either fixed by agreement between buyer and seller or capable of being ascertained from their agreement. Summers v. People's Elevator Co., 136 S.W.2d 81. In order that a contract may be specifically enforced in equity, it is essential that there be mutuality both as to the obligation and the remedy. Falder v. Dreckshage, 227 S.W. 929. Evidence in support of a decree for specific performance must leave no room for reasonable doubt in the mind of the chancellor. Missouri Pac. R. Co. v. McCarthy, 11 S.W. 52, 97 Mo. 214. Specific performance cannot be enforced where the terms of the agreement are not clearly established. Louthan v. Stillwell, 73 Mo. 492. Specific performance will not be granted where there is an adequate remedy at law. Promisor's insolvency is circumstance to be considered in determining whether remedy at law by way of money judgment is adequate so as to preclude resort to specific performance. Jamison Coal Coke Co. v. Goltra, 143 F.2d 889; 154 A.L.R. 1191. The Court finds that the agreement between plaintiff and defendant, upon which this suit is based, and as evidenced by a receipt, which reads as follows: November 7, 1945, received of Albert Boeving, One Hundred Dollars, deposit on new Buick, $100.00. Archie, was not definite as to type, style, series, body style, color, date of delivery, and purchase price; that any oral agreement between the parties in addition to the aforementioned receipt was so vague and indefinite as to be incapable of enforcing. Specific performance of a contract is not a matter of right in equity, but rests in the sound discretion of the court or chancellor. Shubert v. Woodward, 167 F. 47, 92 C.C.A. 509. Granting or refusing specific performance is within sound discretion of trial court. Engemoen v. Rea, 26 F.2d 576. Specific performance of a contract is addressed to equity court's discretion. Kingston v. American Car Foundry Co., 55 F.2d 132. Specific performance is not matter of strict right, but rests in sound discretion of court, exercisable in view of particular facts of each case. Frederich v. Union Electric Light Power Co., 82 S.W.2d 79, 336 Mo. 1038. The Court further finds that it would be impossible for this Court to decree specific performance of a contract so vague in its terms and upon which there was no more meeting of the minds than the alleged contract in question (As an example, if this Court would decree that defendant deliver to plaintiff the next Buick automobile received by them, would the plaintiff want it if it was a bright red color, or would he want it if it was a station wagon, or would he want it if it was a special series, or would he rather have a roadmaster or super series?) Specific performance is always within sound discretion of chancellor, and relief will be granted or denied according to the facts. Selle v. Selle, 88 S.W.2d 877, 337 Mo. 1234. Specific performance is not matter of right even where plaintiff is clearly entitled to compensation, especially where alleged contract is for devise of land. Stiball v. Nation, 98 S.W.2d 724. Specific performance must always rest in court's sound discretion. Railway Exchange Bldg. v. Light Development Co., 107 S.W.2d 59, 341 Mo. 334. The Court further finds that this suit is for the specific performance of personal property of which there might be a shortage at the present time, yet the plaintiff is able to purchase on the open market and if he has an action at all same would be compensable by an action at law and therefore equity should not be called upon to adjudge specific performance. Specific performance will not be granted where there is an adequate remedy at law. Jamison Coal Coke Co. v. Goltra, 143 F.2d 889; 154 A.L. 1191; A decree of specific performance of a contract by a court of equity is not matter of absolute right, but is matter addressed to sound discretion of court." Hackbarth v. Gibstine, 182 S.W.2d 113. Whether specific performance shall be decreed is largely discretionary. Snip v. City of Lamar, 201 S.W.2d 790.
This is an appeal from a judgment denying specific performance on an oral contract for the purchase of an automobile.
The petition states that defendant is a Buick automobile dealer in Poplar Bluff, Missouri, doing business under the name of Vandover Motor Company; that plaintiff and defendant entered into an oral contract on the 7th day of November, 1945, wherein defendant agreed to sell plaintiff the 13th new Buick passenger automobile that would come into his possession after the date of purchase for the market price thereof, and that plaintiff deposited with the defendant $100.00 as part of the purchase price of said car; that defendant received the 13th Buick automobile on the last of August or the first of September, 1946, but refused to deliver the car to plaintiff unless plaintiff sell his used car to defendant as part of the purchase price. The petition states that plaintiff offered to pay the balance of the agreed purchase price to the defendant, in cash, which offer the defendant refused.
Plaintiff pleads that he has no adequate remedy at law and asks specific performance and damages for the failure to carry out the contract.
Defendant, in his answer, admits plaintiff made a deposit of $100.00 on the 7th of November, 1945, but denies that he agreed to deliver the 13th car or the 21st car, as contended by plaintiff, and pleads that no fixed time was required of defendant to deliver plaintiff a new Buick automobile and defendant pleads that plaintiff, at the time, agreed to trade in his special Buick sedan at the price to be agreed upon between the parties when defendant delivered the new car.
We find the facts to be as follows: On November 7th, 1945, plaintiff deposited with defendant's agent, Arch Vandover, Jr., $100.00 on the purchase price of a new Buick automobile, and received a receipt reading as follows: "No. ____ 11-7-45. Received of Albert Boeving, One Hundred no/100 Dollars, deposit on new Buick — Vandover Motor Company, Highway 67, South, Poplar Bluff, Mo. $100.00. Archie." The order was to be filled when his number was reached according to date placed. No specifications as to kind, color or style of Buick was designated at the time the deposit was made. The purchase price was to be the current market price at the time it was received. We find that three or four months after the deposit was made defendant notified plaintiff he was to receive the 13th car and that if any of the applicants withdrew plaintiff's number was to be moved up.
About September 1st, 1946, defendant received a 1946 Buick automobile, model 56S Sedanette, known as a Super model, and notified plaintiff that he was ready to deliver it to him. The delivery price of this car at that time was $1855.87. This car was actually the 12th car according to order. Plaintiff and his wife went to the defendant's place of business, his wife examined the car, they were satisfied with it and agreed to take the same. Plaintiff offered to pay defendant the balance of the purchase price in cash, but defendant demanded that plaintiff turn his used car in on the trade at a value of $835.00. Plaintiff wanted to keep his used car and defendant offered to re-sell the used car to plaintiff, in its present condition for Eleven Hundred Ninety Dollars ($1190.00). Plaintiff refused this offer. Defendant then informed plaintiff that if he insisted on a car, without a trade-in, he would have to wait until the 21st car was received. To this plaintiff agreed. The 21st car was received about November 7th, 1946. Defendant never offered plaintiff any other car and when plaintiff inquired about when he would receive a car, defendant asked him if he had changed his mind about a trade-in. In February, 1947, plaintiff again asked defendant about the car and defendant informed him that he heard he was going to sue him, and if he wanted to sue, to go ahead. Defendant tendered the $100.00 payment into court, for plaintiff, April 15th, 1947.
We find that at the time plaintiff placed his order with the defendant for a new car it was impossible to buy a car for immediate delivery without going on the black market and paying a bonus; that if plaintiff lost his priority with defendant he would be forced to place his order with some other Buick agency and await his turn, which might take from one to two years. This condition was brought about by the inability of the manufacturers to furnish their dealers with cars sufficient to meet the demand.
We find from the evidence that the defendant, during the time plaintiff's order was pending, sold new Buick automobiles for cash and also cars which he took in trade-ins and that plaintiff was not a regular customer of the defendant.
Defendant received between three and four cars a month from the manufacturers.
To properly understand the finding of the trial court we set out the judgment as follows: "The Court further finds that it would be impossible for this Court to decree specific performance of a contract so vague in its terms and upon which there was no more meeting of the minds than the alleged contract in question. (As an example, if this Court would decree that defendant deliver to plaintiff the next Buick automobile received by them, would the plaintiff want it if it was a bright red color, or would he want it if it was a station wagon, or would he want it if it was a special series, or would he rather have a roadmaster or super series?)
"The Court further finds that this suit is for the specific performance of personal property of which there might be a shortage at the present time, yet the plaintiff is able to purchase on the open market and if he has an action at all same would be compensable by an action at law and therefore equity should not be called upon to adjudge specific performance.
"The Court further finds that plaintiff did deposit with defendant the sum of One Hundred Dollars ($100.00) and that this suit was filed February 25, 1947, and service was had on February 26, 1947, but that defendant did not offer or tender back to plaintiff the One Hundred Dollars ($100.00) deposited until defendant's amended answer of April 15, 1947, at which time defendant deposited said sum of One Hundred Dollars ($100.00) with the Clerk of this Court, and that therefore defendant should be liable for all cost accruing in this cause up to and including the 15th day of April, 1947.
"Wherefore, it is ordered, adjudged and decreed that plaintiff's petition be dismissed for want of equity and that plaintiff recover nothing of and from the defendant by virtue of his petition and cause of action."
This is an equity case and it is our duty to try it de novo, lending due deference to the findings of the trial court. Lustenberger v. Hutchinson, 119 S.W.2d 921, 926.
Under appellant's assignment of errors from 2 to 14, inclusive, he complains that the court erred in finding that plaintiff had an adequate remedy at law and therefore equity should not be called upon to adjudge specific performance. We think that we can dispose of all these different assignments of error under one heading. We cannot agree with the lower court that under the facts in this case plaintiff had an adequate remedy at law. It is true that equity will not interfere where there is an adequate remedy at law for damages, but we quote what we believe to be a proper construction of the law under the facts in this case from a very recent Supreme Court decision of the State of Kansas, Heidner vs. The Hewitt Chevrolet Company, a Corporation. This citation is case No. 37,207, in the Supreme Court of Kansas, which is not yet officially reported. The court said: "If, however, it is made to appear to the court that like chattels cannot be readily purchased on the market at the times specified in the contract for the delivery of the chattels, specific performance will generally be granted if the other necessary elements are present." 49 Am. Jur. 148-9, Sec. 126. In the case before us plaintiff paid to the defendant and he accepted a deposit of $100.00 on the purchase price of a new Buick automobile. The very fact that he was assigned a number 13 and required to wait for delivery of such car until the first of September, 1946, which was approximately ten months from the date the order was placed, shows how difficult it was to purchase the kind of car plaintiff desired on the open market. The further fact that defendant refused to accept payment in cash for said car and demanded a trade-in is an indication of the scarcity of automobiles on the open market. The Supreme Court of Kansas, in its opinion in a similar case, stated: "We take judicial notice of the fact that cars of the type and kind involved in this lawsuit were scarce and difficult to obtain for cash alone on the open market at the time in controversy." 31 C.J.S. 674. The evidence shows in this case that plaintiff could not go upon the open market and purchase at the regular price an automobile of the kind and character involved in the case herein. If he could buy such a car he would have to go on the black market and pay a bonus, possibly illegally.
Under the facts plaintiff desired this car to be used in his business and for social duties. It certainly could not be obtained elsewhere except at considerable expense, trouble or loss, which cannot be estimated in advance and under such circumstances he did not have an adequate remedy at law. 58 C.J. 1039, Par. 259; 30 C.J.S. 347; Heidner vs. Hewitt Chevrolet Company, No. 37,207, Supreme Court of Kansas, supra; 30 C.J.S. 356, Sec. 29-b. "Thus where there is no adequate remedy at law, specific performance of a contract relating to personalty will be decreed * * *." 58 C.J. 1036; Hunter v. Quaintance, 168 P. 918.
We find, under the facts in this case, that there was no adequate remedy at law and if the contract is definite and enforceable, equity will lend its hand in enforcing the same.
The lower court found that the agreement upon which this suit is based was so vague and indefinite as to be incapable of enforcing and the court said, in his opinion denying relief in this case, that he could not decree specific performance because the contract was so vague in its terms and that there was no meeting of the minds.
We find the facts in the case to be that on November 7th, 1945, the plaintiff deposited with defendant $100.00 in order that he might receive a preference in the purchase of an automobile when available. No specific model was mentioned at the time plaintiff made the deposit. On or about the first of September, 1946, defendant called plaintiff's home and notified him that his car had come as ordered. Plaintiff and his wife went to the defendant's place of business, plaintiff's wife examined the car, they talked to the representative of the defendant, and stated to him that the car was satisfactory and offered to take it. Plaintiff, at that time, tendered the balance of the purchase price in cash. Defendant offered to deliver the car to plaintiff provided he would trade in his old car for $835.00, which plaintiff refused to do. The facts show that the plaintiff was ready, willing and able to pay the defendant the purchase price of the new car shown him. The only reason that the trade was not carried out was because defendant demanded a trade-in.
On November 7th, 1945, the time the contract was made and the deposit given, nothing was said about plaintiff trading in his old car.
The trial court found that the agreement upon which the suit is based was evidenced by the receipt, dated November 7th, 1945. The court held that such agreement was indefinite as to type, style, series, color, date of delivery and purchase price, and that said oral agreement was so vague and indefinite as to be incapable of enforcing. The court further held that because of the vagueness of the contract, there was no meeting of the minds.
This identical question, almost in the exact words, was before the Supreme Court of Kansas in the case of Heidner v. Hewitt Chevrolet Company, a corporation, supra, and I quote from this opinion:
"As a conclusion of law, the District Court found that the original receipt was not specific or definite enough to create a contract between the parties and that the minds of the parties did not meet on any contract on January 8th, 1946, and no specific contract can be implied from what occurred on that date. Apparently the District Court did not give any consideration to what occurred about July 21st, 1947, which was the time a car satisfactory to plaintiff was shown to him by the defendant and plaintiff offered to accept the same.
"Equity will determine the enforceability of a contract as to certainty, completeness and mutuality as of the date of demand for specific performance or at the time suit is filed rather than at an earlier date. If the contract is certain, complete and has mutuality on the day remedy is invoked or suit is filed, specific performance will be refused because of a lack of completeness, certainty and mutuality at a prior date. Zelleken v. Lynch, 80 Kan. 746, 104 P. 563, 46 L.R.A., N.S., 659; Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P.2d 465, 88 A.L.R. 835; State Highway Comm. of Kansas v. Ames, 143 Kan. 847, 57 P.2d 17; 58 C.J. 940; Driebe et al., Appellants, v. Fort Penn R. Co. et al., 331 Pa. 314, 200 A. 62, 117 A.L.R. 1091; Pomeroy's Specific Performance of Contracts, 3d Ed., Secs. 158, 151; Fry on Specific Performance, 6th Ed., Par. 338; 1 Lawrence on Equity Jurisprudence, 188-189, Sec. 142. Whatever may have been the situation as to the agreement between the parties on January 8, 1946, as to certainty and mutuality, the contract was definite as to the type of automobile, the price to be paid therefor, and the date for delivery, at all times subsequent to the day the car was shown to the plaintiff by the defendant and plaintiff agreed to accept the same. It is well known, of course, and a matter of which the court does take judicial notice, that the prices of new automobiles in the hands of an authorized dealer of the manufacturer have been standardized by the manufacturer and can be readily computed by adding to the f.o.b. factory price of any model the freight, taxes and other items of a like nature, all of which are well known to both dealer and customer. City of Topeka v. Stevenson, 79 Kan. 394, 99 P. 589, 131 Am. St. Rep. 297, 17 Ann. Cas. 491; 31 C.J.S., Evidence, Sec. 81, page 674 et seq.
"When plaintiff was shown the car at defendant's place of business, plaintiff offered to accept the same and pay the cash price thereof and defendant's only ground for refusal to deliver the car was that the plaintiff would not furnish a `trade-in'." The court held that this reason was insufficient to prevent specific performance.
In the case before us we find the same facts as were before the court in Kansas. In the Kansas case a deposit of $100.00 was made by the prospective purchaser and a receipt taken, which is as follows: "Hewitt Chevrolet Company, 412-419 South Main Street, Phone 1780-1781, No. 3115, Ottawa, Kansas, January 8th, 1946. Received of B.F. Heidner One Hundred no/100 Dollars ($100.00), deposit on new car. Non-transferrable. Hewitt Chevrolet Company, by Alex N. Telfer. Thank You." Plaintiff was given number 66 on defendant's list. There were no specifications as to kind, make, model, price or date of delivery, as in the case before us, yet the court held that when the car arrived and the purchaser was notified and that he then came to the place of business of the seller, viewed the car and accepted it, that that completed the oral agreement of sale. The contract was then made definite as to kind, model, price and date of delivery, and it was no defense that the purchaser refused to trade in his used car, that not being considered at the time the deposit was made and the agreement was first entered into.
We hold that the trial court erred in holding that the receipt was the whole basis upon which plaintiff relied for recovery. It alone did not constitute the entire contract. The court left out of consideration what took place on the last of August or the first of September, 1946, the time when defendant called plaintiff and informed him that his automobile had arrived and the fact that plaintiff and his wife viewed the car and it was acceptable to them and they agreed to take it and pay the purchase price and then delivery was refused solely because plaintiff refused to turn in his old car for $835.00 as a part of the purchase price. We hold that equity will determine the enforceability of a contract as to certainty, completeness and mutuality as of the date of the demand for specific performance or at the time suit was filed. We hold that the contract for purchase of the automobile in this case was completed on or about September 1st, at the time plaintiff viewed the car and agreed to accept it and to pay the purchase price in cash. It was certain, complete and had mutuality and therefore specific performance could not be denied because of lack of completeness, certainty and mutuality as of the date defendant gave the receipt to plaintiff and the $100.00 was deposited on the purchase price, to wit, November 7th, 1945. Whatever might have been the situation at the time the receipt was given for the deposit aforesaid, the agreement between the parties on the first of September, 1946, the date the new car was tendered plaintiff, and he agreed to accept it, the contract was definite as to type and price and date of delivery. We further hold that the question of price was definite from the beginning because the price is determined by adding to the manufacturer's price, the freight and expenses necessary for delivery to the customer and the court will take judicial notice that that price is fixed as of date of delivery. There was a conflict of testimony as to how the car was to be paid for but we believe that the facts in the case are clear, cogent and convincing that at the time the contract of sale was entered into between the parties that there was nothing mentioned about a trade-in and we hold that the purchase price was to be in cash.
The judgment is reversed with directions to enter a decree of specific performance in favor of plaintiff; that defendant deliver to the plaintiff a new Super Buick automobile, Model 56S, Sedanette, year 1946, at the delivery price of $1855.87, and in case defendant cannot deliver a 1946 model, then a new car of the above description, made either in 1947, 1948 or 1949, at the price of $1855.87.
Blair, J., and Vandeventer, P.J., concur.