Opinion
No. 4738.
Decided July 2, 1929.
1. EVIDENCE — CONVERSATION WITH DEALER'S AGENT RESPECTING PURCHASE OF PLAINTIFF'S AUTOMOBILE HELD ADMISSIBLE ON THEORY CONTRACT WAS AMBIGUOUS AND TO SHOW WHETHER TRANSACTION WAS SALE OR CONSIGNMENT. In action for automobile dealer's breach of contract to purchase automobile from plaintiff for agreed price payable partly in cash, balance to be applied on price of new automobile, plaintiff's testimony respecting conversation with defendant's agent prior to execution of contract to effect that agent agreed to buy automobile on terms mentioned in contract held admissible in explanation of contract on theory that it was ambiguous and on question whether contract was one of sale or consignment. 2. SALES — EVIDENCE OF CONVERSATIONS RESPECTING DELIVERY OF PLAINTIFF'S CAR TO AUTOMOBILE DEALER'S AGENT HELD RELEVANT IN ACTION FOR BREACH OF CONTRACT. In action for automobile dealer's breach of contract to purchase automobile from plaintiff for agreed price payable partly in cash, balance to be applied on price of new automobile agreed to be purchased by plaintiff, evidence of conversations between plaintiff and dealer's agent relating to delivery of car held material and relevant. 3. APPEAL AND ERROR — STATEMENT OF WILLINGNESS TO PERFORM CONTRACT TO TURN OVER AUTOMOBILE ON NEW CAR HELD NOT SUFFICIENT AS BASIS OF ERROR. In action for automobile dealer's breach of contract to purchase automobile from plaintiff for agreed price payable partly in cash balance to be applied on price of new automobile agreed to be purchased by plaintiff, plaintiff's statement while testifying that he was willing to carry out his contract and that up to a specified time believed defendant would do likewise held not of sufficient consequence to be made basis of error. 4. EVIDENCE — IN ACTION FOR BREACH OF AGREEMENT TO TAKE OLD AUTOMOBILE ON NEW CAR, PRIOR WRITTEN CONTRACT HELD ADMISSIBLE TO SHOW COURSE OF DEALING. In action for automobile dealer's breach of contract to purchase automobile from plaintiff for agreed price payable partly in cash, balance to be applied on price of new automobile agreed to be purchased by plaintiff, previous written contract for plaintiff's original purchase of his car from defendant held admissible to show course of dealing between parties with respect to recognition of such contracts not countersigned or approved by defendant's manager. 5. APPEAL AND ERROR — RULINGS ON MOTIONS FOR NONSUIT AND FOR DIRECTED VERDICT ARE NOT REVIEWABLE WHERE NOT EXCEPTED TO; ASSIGNMENTS OF ERROR TO RULINGS ON MOTION FOR NONSUIT AND FOR DIRECTED VERDICT NOT ARGUED IN BRIEF WILL NOT BE REVIEWED. Where no exception was taken to trial court's rulings denying defendant's motion for nonsuit and for directed verdict, and assignments of error thereto were not argued in appellant's brief, they will not be considered by appellate court. 6. APPEAL AND ERROR — SPECIFICATION THAT EVIDENCE WAS INSUFFICIENT TO SHOW AUTOMOBILE WAS CONSIGNED PRESENTED NO QUESTION OF INSUFFICIENCY OF EVIDENCE ON ISSUES OF AGENT'S AUTHORITY AND RATIFICATION (SUPREME COURT RULES OF
Corpus Juris-Cyc. References:
Agency 2 C.J. § 733 p. 962 n. 19; § 736 p. 965 n. 38.
Appeal and Error 3 C.J. § 817 P. 918 n. 23; § 1522 P. 1373 n. 43; 4 C.J. § 2952 p. 969 n. 56; § 3057 p. 1068 n. 22.
Evidence 22 C.J. § 116 p. 176 n. 91; § 1573 p. 1180 n. 60.
Sales 35 Cyc. p. 589 n. 23. PRACTICE, RULE 26.) Under Rules of Practice of the Supreme Court, rule 26, specification of error that "the evidence is insufficient * * * in that the evidence shows that the said automobile involved in said action was consigned to" defendant held to present no question of insufficiency of evidence to sustain finding that defendant's agent had authority to enter into contract sued on or that said contract was subsequently ratified by defendant. 7. PRINCIPAL AND AGENT — EVIDENCE PRESENTED JURY QUESTIONS RESPECTING AGENT'S AUTHORITY TO CONTRACT FOR TAKING IN OLD CAR ON PRICE OF NEW CAR AND RATIFICATION. Evidence held sufficient to present jury question as to whether automobile dealer's agent had authority to enter into the contract to take in plaintiff's automobile on new car as alleged, and whether contract was subsequently ratified by defendant, and to support finding that dealer was bound by the contract.
Appeal from District Court, Fourth District, Wasatch County; Martin M. Larson, Judge.
Action by J.W. Jordan against Shirley Madsen and the Superior Motor Company. From a judgment for plaintiff against it, defendant last named appeals.
AFFIRMED.
Ben E. Roberts, of Salt Lake City, for appellant.
E.D. Hatch, of Salt Lake City, for respondent.
This is the second appeal in this action. The case was here before upon the appeal of the plaintiff from an order of the district court sustaining demurrers to the complaint and dismissing the action. Jordan v. Madsen (Utah) 252 P. 570. It was there held that the facts alleged stated a cause of action, and accordingly the judgment was reversed and the cause remanded for further proceedings. Thereafter the defendants answered the complaint and the cause was tried by jury resulting in a verdict and judgment for the plaintiff and against the Superior Motor Company, from which the latter has appealed.
The action arises out of a transaction whereby the plaintiff delivered to the Superior Motor Company an automobile under a written agreement executed by the plaintiff and by Shirley Madsen as agent for the Superior Motor Company. The theory and claim of the plaintiff was that the contract was a sale of the automobile for $900, payable $500 in cash and $400 as part payment on a new automobile, agreed to be purchased by the plaintiff. The motor company contended that the contract was one of consignment merely for the purpose of sale with no obligation on its part to do more than attempt to sell it. This question was settled, however, on the first appeal in the plaintiff's favor. At the trial the main questions in dispute were the authority of the agent to bind the motor company, and whether the motor company had by its subsequent conduct ratified the contract as made by the agent.
The question of whether the contract was one of consignment or sale also arose at the trial. Evidence relating to all of the questions mentioned was introduced, and the issues were submitted to the jury under instructions which are not now questioned.
The errors assigned by appellant relate to alleged erroneous admission of certain evidence offered by the plaintiff, the overruling of a motion for nonsuit made by defendant, the refusal to direct a verdict for the defendant, and a claim that "the evidence is insufficient to sustain or justify the verdict herein or the judgment on said verdict in that the evidence shows that the automobile involved in said action was consigned to the said appellant for the purpose of determining the value of said automobile, and that no damage was shown by the evidence to said plaintiff by this appellant."
The evidence which appellant claims was erroneously admitted is not set out in appellant's brief except by a very general reference, and no legal principles are stated or authorities cited to show why the evidence should not have been admitted. The evidence complained of was the 1-4 testimony of the plaintiff of a conversation had with the appellant's agent, Shirley Madsen, just prior to the execution of the contract, the substance of which was that the plaintiff agreed to sell and the agent agreed to buy the automobile in question upon the terms mentioned in the contract. He also testified to conversations with the agent relating to the delivery of the car, and stated that he was willing to have the contract carried out and up to a certain date believed the appellant would perform its contract. He further identified and introduced in evidence a previous contract in writing made with appellant for the original purchase of the automobile in question.
We can see no reason for saying that any of the evidence complained of was seriously objectionable. The evidence of the conversation leading to the execution of the contract was in accordance with the terms of the contract as the same was construed on the first appeal by this court. It was also admissible in explanation of the contract upon the theory that the contract was ambiguous. As the court submitted to the jury the question of whether the contract was one of sale or consignment, it is apparent that the evidence referred to was admitted for that purpose. The evidence of conversations relating to the delivery of the car was clearly material and relevant, and the statement of the plaintiff that he was willing to carry out his contract and up to a specified time believed the appellant would do likewise, is of not sufficient consequence to be made the basis of error. The previous contract for the original purchase of the car from appellant was admitted to show the course of dealing between the parties with respect to the recognition of such contracts which were not countersigned or approved by the manager. As such question was involved at the trial concerning the contract sued on, the evidence of the previous contract was admissible upon that ground and for that purpose. The appellant's exceptions to the admission of the evidence referred to are not well taken.
Appellant's assignments of error on account of the denial of its motion for a nonsuit and for a directed verdict are not argued in its brief. The record fails to show an 5 exception to either ruling. We, therefore, do not consider them.
The point mainly argued by appellant is that the evidence is insufficient to sustain a finding that the appellant's agent had authority to enter into the contract, or that the contract was subsequently ratified by the appellant. In appellant's assignment of errors this matter is not specified as 6, 7 required by rule 26 of the Rules of Practice in this court. The specification is "that the evidence is insufficient * * * in that the evidence shows that the said automobile involved in said action was consigned to the said appellant," etc. This presents no question of the insufficiency of evidence upon the subjects of authority and ratification. We have, however, examined the record and find at least some substantial evidence supporting the authority of the agent to make the contract for his principal, and of the subsequent ratification of the contract by the principal. It was admitted that Madsen was a sales agent for appellant at the time the contract was executed. It was further admitted that the automobile was delivered to the agent and by him delivered to the principal along with the contract under which the plaintiff parted with it. The principal retained the automobile, at first complaining about the price only. Later it asserted that the agent had no authority to purchase the car, but nevertheless kept the car in its possession with no offer to return it. In addition there was evidence of former dealings between agents of the appellant and the plaintiff, and with others in that locality, tending to show that such agents had entered into similar transactions which were recognized and approved by the appellant.
Taken all together we think there was sufficient evidence to go to the jury and to support a finding that the principal was bound by the contract.
JUDGMENT AFFIRMED.
STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.