#### W. S. EPLEY v. COMMERCIAL CREDIT COMPANY.

(Filed 8 December, 1926.)

Vendor and Purchaser — Automobiles—Contracts — Partial Payments— Tender’ — -Measure of Damages.

Where a credit company to whom a dealer had sold a contract and notes upon a partial payment plan, has possessed and wrongfully sold the car after full payment of arrears had been tendered by the purchaser of the car, the measure of damages in the latter’s action is the fair market value of the car at the time of the refusal of the tender of payment, not exceeding the purchase price, less whatever amount he may still be due the seller under the terms of his contract.

Appeal by defendant from Schenoh, J., at March Term, 1926, of McDowell. New trial.

Tbe plaintiff sued to recover tbe amount be bad paid on tbe purchase price of a car, and tbe following verdict was rendered:

I. In what amount, if any, is plaintiff entitled to recover of defendant, Commercial Credit Company?

Answer: Full amount — $239.77 with interest.

Hudgins, Watson & Washburn for •plaintiff.

J. Lanirence Jones, J. L. Delaney and Morgan & Ragland for defendant.

Adams, J.

On 12 September, 1924, tbe plaintiff and tbe Old Fort Motor Company mutually executed a conditional sale agreement by the terms of which tbe plaintiff purchased from tbe company a Ford touring car at tbe agreed price of $513.12. He made a cash payment and agreed to pay to tbe seller or its order $342.12 in twelve monthly installments of $28.51 each, evidenced by bis promissory notes. Tbe agreement and tbe notes were afterwards assigned by tbe Old Fort Motor Company to tbe defendant. Some time after tbe defendant became tbe bolder of tbe notes and agreement tbe car was seized by tbe sheriff of McDowell County under tbe provisions of C. S., 3403, relating to tbe prohibition law. It is intimated, though it does not distinctly appear, that tbe defendant gave a bond to have tbe car released from tbe custody of tbe sheriff. Tbe written agreement contains a provision that upon any default or upon tbe buyer’s losing possession of tbe car all tbe unpaid balance of tbe purchase price should forthwith become due and payable; and it is said that tbe defendant after getting possession of tbe ear sold it under tbe terms of tbe contract. Tbe plaintiff testified that *662be bad paid on tbe purchase price tbe sum of $239.71, tbat be bad tendered tbe remainder claimed to be due, and tbat tbe defendant bad refused to accept tbe payment or to return tbe car. He brought suit- to recover tbe amount be bad paid on tbe purchase price.

In reference to tbe issue submitted tbe trial judge gave tbe following instruction, to which tbe defendant excepted: “But, however, should you find on tbe contrary tbat be did not cause it to be used or permit it to be used for intoxicating whiskey, and be did make a tender of all tbe money tbat was due prior to tbe sale of tbe car, then be would be entitled to recover something. Tbe amount be is entitled to recover should be $239.77, or such smaller amount as you find be is entitled to recover. He contends be should recover tbat entire amount. He says tbat be paid $234.51 for tbe car, and tbat be paid $5.26 for insurance, which was returned by tbe insurance company, and be contends be should recover tbe total amount of those two amounts, which is $239.77, and that’s tbe amount be contends be has lost by reason of tbe fact tbat tbe car was wrongfully withheld from him. He contends tbe car was worth more than $239.77 and, therefore, since be has paid tbat much, and since tbe ear has been taken away from him be is out tbat much and has lost all of tbat amount.”

It will be noted tbat no specific rule is laid down for tbe measure of tbe plaintiff’s loss. To say tbat tbe plaintiff should recover $239.77 or such smaller amount as be should be entitled to is to leave tbe recovery to tbe arbitrary judgment of tbe jury without prescribing any rule as a guide. If tbe plaintiff paid a part of tbe purchase price and made a formal tender of tbe remainder due, and tbe defendant under these circumstances wrongfully sold tbe car tbe measure of tbe plaintiff’s loss would be, not necessarily tbe amount be bad paid, but tbe fair market value of tbe car at tbe time of tbe defendant’s wrongful refusal to return it, in no event to exceed tbe purchase price, less tbe remainder due thereon by tbe plaintiff. Kellogg v. Malick, 4 An. Cas. (Wis.), 893; Russell v. Butterfield, 21 Wendell, 300; Boam v. Cohen, 145 Pac. (Kan.), 559; Barbee v. Scoggins, 121 N. C., 135; 11 C. J., 597, sec. 299.

For tbe error' complained of there must be a

New trial.