Calumet Motor Sales of Hammond, Inc. v. M. F. Cooper Builders, Inc.

221 N.E.2d 438, 140 Ind. App. 624, 1966 Ind. App. LEXIS 439

• Court: Indiana Court of Appeals
• Decided: November 22, 1966
• Docket: No. 20,279
• Status: Published

Opinions

Faulconer, J.

— This is an appeal from a judgment recovered by appellee in a suit for breach of contract. The overruling of appellant’s motion for new trial is the sole error assigned. The motion for new trial specified that 1) the finding of the court is not sustained by sufficient evidence; 2) the decision of the court is not sustained by sufficient evidence; 3) the finding of the court is contrary to law; 4) the decision of the court is contrary to law; and 5) error in the assessment of the amount of recovery in this, the amount is too large.

On or about September 23, 1961, appellee’s president negotiated the purchase of a new 1962 Lincoln Continental automobile with one of appellant’s salesmen. A form of “Retail Buyer’s Order” was filled out providing for the purchase price of approximately $6,800, to be paid by an allowance of $4,000 for a 1960 Lincoln automobile owned and to be traded in by appellee upon delivery of the 1962 Lincoln Continental. A deposit of $200 was paid by appellee to appellant in the form of a check at the time the contract was made. The 1962 Lincoln Continental automobile was never delivered. The 1960 Lincoln automobile was thereafter sold by appellee, at auction, for $1,838, and this action commenced.

Trial was to the court, without the intervention of a jury, and after a finding for plaintiff-appellee judgment was entered for $2,362.

Appellant’s defense at the trial, and its contention on appeal, is that there is no evidence of a contract in that there is no evidence of an acceptance by appellant. In support of this proposition appellant relies upon the “Retail Buyer’s Order” and points out that it provides, in part, “This order is not binding on dealer until accepted by dealer in writing”; and, “Must be accepted by an authorized representative of the dealer.” The latter appears under the line designated “Accepted.”

The trial court by its general decision for plaintiff-appellee found that there was a contract. Therefore, the only question presented on appeal is the sufficiency of the evidence to support the decision of the trial court.

The evidence on the elements of the contract are conflicting. The appellee’s president was the only witness testifying for plaintiff, and the president of appellant was the only witness testifying for the defendant. We are of the opinion the evidence most favorable to the appellee and the legitimate inferences therefrom are sufficient to support the decision of the trial court.

The evidence tending to support a finding of acceptance— the only element in contention — by appellant, to which we are confined on appeal, shows that after appellee’s president completed the transaction the salesman gave the document and appellee’s check to appellant’s president who was at the scene; that appellee’s president inquired of the salesman concerning the 1962 Lincoln Continental automobile, and also inquired of appellant’s president on several occasions after signing the Retail Buyer’s Order on September 23, 1961, either by telephone or in person at appellant’s place of business; that the response of appellant’s salesman and president was that they didn’t have the delivery date; that appellee learned after November 25, 1961, that the automobile had already arrived and had been disposed of; that early in December, 1961, in a conversation with appellant’s president appellee was advised by him that appellee was “not going to receive delivery”and that after this conversation appellee disposed of the 1960 Lincoln automobile on or about December 7, 1961. The evidence further shows that sometime in November, 1961, appellee inquired of the Lincoln-Mercury Division of the Ford Motor Company and was informed that under a certain production number a car was being built for M. F. Cooper Builders through Calumet Motors. There was evidence that the check for $200 was endorsed by appellant and deposited in its account, and that no offer to return such check was made. The alleged contract shows the word “House” written after the printed word “Salesman,” and there is evidence that this word was written by appellant’s salesman with whom appellee dealt, and this meant there was no salesman’s commission as this salesman was on salary.

The evidence and circumstances surrounding this transaction — although the evidence is denied or contradicted by appellant’s witness — is certainly sufficient, in our opinion, to sustain the finding of the trial court that there was a binding contract. The trial court was justified in finding that by the conduct of appellant’s president, in receiving the document, he knew of the deal made by his salesman, and this, in addition to his conduct from September 23 to December 7, 1961, was sufficient evidence to support the finding of acceptance by appellant of the contract.

“The manifestation or expression of assent necessary to form a contract may be by word, act, or conduct which evinces the intention of the parties to contract.” 17 Am. Jur. 2d, Contracts, § 20, p. 356.

Appellant next argues that there is no evidence of value to support the judgment of damages. With this contention we cannot agree. There is evidence in the record to show, or from which the trial court could infer, at the time of the breach of contract, that the market or current price of the 1962 Lincoln Continental automobile was $6,800, and that the market or current price of appellee's 1960 Lincoln automobile was $1,838. The contract price was $6,800 for the 1962 Lincoln Continental automobile, and $4,000 for the 1960 Lincoln automobile. The difference, therefore, between the contract price and the market price was found to be $2,162, to which sum the court added the $200 deposit in arriving at is judgment.

On appeal we are only concerned with whether there is sufficient evidence to support the findings of the trial court. We are not concerned with whether there could have been more or better evidence. Once plaintiff-appellee introduced evidence to establish the essential elements of his cause of action, the burden of going forward then shifted to the defendant-appellant to introduce evidence if, in its opinion, the evidence produced by appellee was not correct.

In our opinion the damages are not excessive as contended by appellant in light of the law in Indiana on that issue.

Finding no reversible error, the judgment is affirmed.

Carson, J., concurs.

Wickens, P. J., concurs with opinion.

Prime, J., dissents without opinion.