{ "id": 1415084, "name": "Madison-Smith Cadillac Company v. Shauman", "name_abbreviation": "Madison-Smith Cadillac Co. v. Shauman", "decision_date": "1936-01-27", "docket_number": "4-4107", "first_page": "90", "last_page": "96", "citations": [ { "type": "official", "cite": "192 Ark. 90" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "122 S. W. 239", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "92 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548567 ], "opinion_index": 0, "case_paths": [ "/ark/92/0111-01" ] }, { "cite": "46 S. W. 943", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "65 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609238 ], "opinion_index": 0, "case_paths": [ "/ark/65/0320-01" ] }, { "cite": "125 S. W. 124", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546889 ], "opinion_index": 0, "case_paths": [ "/ark/93/0472-01" ] }, { "cite": "115 S. W. 168", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "88 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517098 ], "opinion_index": 0, "case_paths": [ "/ark/88/0491-01" ] } ], "analysis": { "cardinality": 583, "char_count": 11143, "ocr_confidence": 0.483, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.053138812340024454 }, "sha256": "fbcad20b3bfb5d346db6d3649f747a6aea68703d28b48e05381b5550bb522e0b", "simhash": "1:97f8a0ba0a677758", "word_count": 1959 }, "last_updated": "2023-07-14T21:15:38.173054+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Madison-Smith Cadillac Company v. Shauman." ], "opinions": [ { "text": "Baker, J.\nThis case is unusual in many aspects. The appellee bought from Madison-Smith Cadillac Company, in Little Bock, a LaSalle sedan automobile, and paid therefor $3,055. This was on September 29, 1928. He alleged in his complaint that the steering mechanism upon this car was in bad condition from the time of the purchase until May 3, 1930, when the car was wrecked, said wreck having been caused by the defective steering gear. During the period prior to the wreck the car had been returned to the repair shops of the Madison-Smith Cadillac Company on several occasions, but repairs were never successful. The appellee made claims ior damages, including doctor\u2019s bills and other expenses for injuries suffered by the wife of the appellee at the time of the wreck.\nAfter the said wreck, when the LaSalle automobile was returned to the shop of the appellant for repairs, the estimated cost of such repairs was something above $400. Shauman did not want to pay this price and did not authorize the repairs to be made. A few days later he made a proposition in writing to the Madison-Smith Cadillac Company. His letter, dated June 4, 1930, is as follows:\n\u201cMadison-Smith Cadillac Co.,\n\u201cLittle Bock, Arkansas.\n\u201cAttention Mr. Madison.\n\u201cDear Mr. Madison:\n\u201cConcerning our conversation regarding the trade of my LaSalle sedan, I hereby confirm your proposition: You to take my car in trade for the Cadillac Fleetwood that you are now driving this coming September and I to pay you a difference of $2,600. Tour car to be in as good condition as of this date, natural wear excepted. You are to have immediate possession of my car to repair and sell and you to deliver your car at a date agreed upon in September. I furthermore state that my car is free from all indebtedness and no liens against same.\n\"Thanking you very kindly for your consideration in this matter, I am,\n\"Very truly yours,\n[Signed] \"Harry E. Shauman.\u201d\nThe answer to this letter was by Mr. Madison, individually, and is as follows:\n\"Little Rock, Ark.,\n\"June 7,1930.\n\"Mr. H. E. Shauman,\n\"N. O. Nelson Mfg. Co.,\n\"Little Rock, Arkansas.\n\"Hear Mr. Shauman:\n\"I am in receipt of your letter of the 4th confirming purchase of my Fleetwood Cadillac Sedanette, as follows: I to take delivery of your LaSalle at once, and to deliver to you my oar in September, 1930. You to pay me a difference of $2,600. I am to deliver you my car at that time in same condition as of this date, with the exception of natural wear on average mileage in the meantime.\n\"Yours very truly,\n\"A. F. Madison (Signed)\n\"A. F. Madison.\n\u201cP. S. Might advise that I am just advised by Cadillac Motor Car Company that they are shipping me the new improved radio which I will install on this car upon receipt. \u2019 \u2019\nOne of the controversies in this suit is that the Madison Cadillac Company, formerly Madison-Smith Cadillac Company, - was not a party to the contract as evidenced by these letters, but that the contract was one between Mr. Shauman and Mr. Madison only; that Mr. Madison, as an individual, accepted the offer of Mr. Shauman, and became bound thereby to the exclusion of the corporation.\nThe view we have of this suit, however, makes it immaterial whether the suit should have been against the corporation or the individual.\nThis was an exchange or barter of one automobile for another, the difference in values being evidenced by the agreed consideration of $2,600, to be paid by Shauman at the time he was to take over the Fleetwood Cadillac car in September. There was no agreement about the value of either one of the cars set out in this contract. There was, however, an agreement to the effect that the Fleetwood car was worth $2,600 more than the LaSalle car. That is certain and definite.\nUpon the trial of the cause the suit proceeded upon a theory that the appellee was the purchaser of the Fleetwood car; that he was paying therefor by the delivery of the LaSalle car and by the settlement of the claim he alleged he had against the defendants for $600 for damages and by the further payment of $2,600, to be made in September.\nIn the development of the case no effort was attempted as an explanation of the alleged damage claim, except that Shauman makes it clear he intended a settlement of the matter in the contract. If so, it was an unnoted consideration.\nIn September Shauman says that his financial condition and status had changed, and that he was unwilling to proceed with his contract and pay the $2,600 according to agreement and to accept delivery of the Fleetwood Cadillac car. This is the only reason given for the failure to perform the contract. The Fleetwood Cadillac car was ready for delivery, and the evidence is undisputed that Mr. Madison called Shauman on two or three occasions desiring to make delivery, which was refused; that Mr. Galloway, a salesman of the Madison-Cadillac Company approached Mr. Shauman on one or two occasions in an effort to deliver. Shauman refused and would not pay the $2,600. The car was kept for him until January 22, 1931. At that time the Fleetwood Cadillac car was sold or traded for $950 in cash and two Buick cars. There was realized from the two Buick cars $940, making a total received for the Fleetwood car of $1,890. Prior to this time the LaSalle car had been repaired and was sold for $1,141. $417.39 had been spent in repairs on the LaSalle car, so the net amount received for it was $723.61, which, added to the $1,890, for which the Fleet-wood car was sold, made a total of $2,613.61 that w\u00e1s received for the Fleetwood Cadillac car.\nOn April 11, 1932, Mr. Shauman-wrote Mr. Madison a letter calling attention to a letter written on a previous date, April 2d, in regard to the credits for the LaSalle car. In response to this letter, by Mr. Shauman, on April 11, Mr. Madison, answering, called attention to Shauman\u2019s letter of June 4, 1930, the contract letter, and also called attention to the fact that the trade was made between the two parties as individuals. He further said: \u201cThe writer held the car for you until the specified time and then held it some little time longer, trying to give you a chance to carry out the agreement. \u2019 \u2019 \u201cThe writer lost considerable more money by holding the car than he realized out of the wrecked car which you turned in.\u201d\nThese two letters show the attitude of the parties at that lime.\nShauman thought that he was losing too much, although he had breached the contract himself, and, accordingly he filed suit, as he contends, not on account of his breach of the contract, but to protect himself against the extreme penalty or losses which he says he suffered by reason of the fact that the appellants had refused to account to him for any part of the contract price that he had paid by trade of the LaSalle car and settlement, of his controversy for damages on account of injuries alleged to have been suffered. He had settled his claim for damages, and delivered his LaSalle sedan, but had nothing in return.\nThe theory of the defense is that, after the appellee had breached the contract, he was the author of his own misfortunes and was not entitled to any accounting for any part of the consideration paid or traded on the purchase of the car he refused to accept.\nConflicting evidence was offered tending to show the market valne of the two cars, the Fleetwood Cadillac and the LaSalle, at and prior to the time of the breach of the contract, and also some evidence was offered tending to show the market valne of the Fleetwood car at the time it was sold. Among other items of proof in regard to the value of the Fleetwood-Cadillac car, the fact was developed that, after it had been kept in the hope of delivery to Shauman, a new model had been put upon the market, which rendered the Fleetwood car an out-of-date model and very materially reduced in market value.\nShauman contends that upon his breach or failure to accept the Fleetwood Cadillac car, the defendants, after notice to him, should have advertised or sold the car at public sale and accounted to him for the purchase price thereof; that, failing to do so, they must account to him for the market value at the time of the breach, and he argues that the jury, upon the trial of this ease, must have found the market value to be at least $3,100, from which, he argues, was subtracted the amount of his debt or obligation, $2,600, leaving a verdict of $500, the amount for which judgment was rendered in his favor.\nThis argument, made to sustain this verdict, is extremely adroit, but not convincing. On account of contradictory instructions, submitting this case to the jury, the verdict is not conclusive as a finding of any facts. To determine the rights of the parties in this controversy, we attempt an analysis of the material part of the record before us.\nIf we treat the subject of this controversy, as the parties did upon the trial, as a contract for the sale of the Fleetwood Cadillac car to Shauman, for the delivery of the LaSalle car, and payment of the $2,600, it is necessary that we discuss the written contract between the parties. This contract was not an executed contract. Shauman did not have title or possession actually or constructively. The LaSalle car and the settlement of Shauman \u2019s claim for damages, for some undetermined amount, was a \u201cdown payment.\u201d There was a balance owing of $2,600. This was to be paid in September, then .only was delivery contemplated. So the contract was executory. See distinction between executed and executory contracts. 13 C. J., p. 245, \u00a7 11; 6 R. C. L., p. 590.\nShauman, in his letter, the contract, to the defendants, refers to the Fleetwood car as \u201cyour car,\u201d possession of which defendants were entitled to have until ho had performed the contract upon his part by the payment of $2,600. There was never a time from the date that letter was written and offer accepted until the present time that Shauman could have rightfully gotten possession of that ear, except by full compliance of his agreement to pay the $2,600. The defendants were not mere bailees, or trustees, nor did they occupy the relative position of a mortgagee in possession. Whether the breach arose out of a wilful refusal to perform or actual in-' ability, can make no difference. No enlarged rights or remedies arise because misfortune had overtaken him. He admits his breach; also that defendants were not in default. Plaintiff therefore cannot maintain his suit. Harris Lumber Company v. Wheeler Lumber Co., 88 Ark. 491, 115 S. W. 168; Berman v. Shelby, 93 Ark. 472, 125 S. W. 124; Mo. Pac. Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943; Kirchman v. Tuffli Bros. Pig Iron & Coke Co., 92 Ark. 111, 122 S. W. 239.\nSince there was no delivery of the Fleetwood car, plaintiff did not have any property therein; so long as the contract was executory, his property lay in the contract. Its validity or enforceability was not questioned.\nThe court erred in refusing to direct a verdict for defendants. Judgment is reversed, and cause dismissed.", "type": "majority", "author": "Baker, J." } ], "attorneys": [ "Owens \u00a3 Ehrman, for appellants.", "R. E. Wiley, for appellee." ], "corrections": "", "head_matter": "Madison-Smith Cadillac Company v. Shauman.\n4-4107\nOpinion delivered January 27, 1936.\nOwens \u00a3 Ehrman, for appellants.\nR. E. Wiley, for appellee." }, "file_name": "0090-01", "first_page_order": 110, "last_page_order": 116 }