Stroop v. Carberry

359 P.2d 504, 139 Mont. 6, 1961 Mont. LEXIS 8
CourtMontana Supreme Court
DecidedFebruary 8, 1961
DocketNo. 10120
StatusPublished

This text of 359 P.2d 504 (Stroop v. Carberry) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stroop v. Carberry, 359 P.2d 504, 139 Mont. 6, 1961 Mont. LEXIS 8 (Mo. 1961).

Opinion

MR. JUSTICE CASTLES

delivered the Opinion of the Court.

This is an appeal from a judgment entered in favor of the defendants. The action was brought by the plaintiffs for the amount of $901.02 which was an alleged unpaid balance owed by the defendants to the plaintiffs as a result of the sale of a 1952 Packard automobile. Pursuant to stipulation of counsel, the case was tried by the district court without a jury, and the court found for the defendants.

The plaintiffs, Jack L. and Alvina J. Stroop, were husband [7]*7and. wife and resided in the city of Great Falls, Montana. The defendants, Neil R. and Margaret E. Carberry, were husband and wife and lived next door to the Stroops at the time of the sale of the 1952 Packard automobile.

The complaint alleged that in May of 1954, the plaintiffs sold and delivered a 1952 Packard automobile and three extra automobile tires to the defendants. It alleged that the defendants promised to pay the sum of $1,820 for the automobile and the tires, but that only the amount of $918.98 had been paid leaving a balance due from the defendants of $901.02 which had not been paid on demand. The complaint then prayed for judgment in the amount of $901.02 against the defendants.

The defendants demurred to the complaint and the demurrer was overruled. They then answered as follows: They admitted that they had paid the plaintiffs the sum of $918.98 for the 1952 Packard automobile; alleged that the sum of $918.98 was the full amount of the agreed purchase price for the automobile; and denied the remainder of the allegations of the complaint.

After the evidence was submitted, the district court entered findings of fact and conclusions of law wherein it found that the defendants had paid the amount of $918.98 to the plaintiffs for the automobile which was the full amount agreed upon for the sale. The court concluded that the plaintiffs should take nothing from the action and rendered judgment for the defendants. The plaintiffs have appealed from this judgment.

The sole issue raised by the plaintiffs’ four specifications of error is whether the evidence justified the district court’s judgment. In a determination of this question it will be necessary to consider the evidence which was before the district court concerning the amount that the defendants agreed to pay for the Packard.

The following testimony was received in the presentation of the plaintiffs’ ease:

[8]*8The plaintiff, Jack L. Stroop, testified that his oeenpation was selling new and used automobiles. In May of 1954, he had been engaged steadily in that occupation for four or five months with some experience prior to that time. He was employed by Seese Chevrolet until May 1, 1954, when the company changed hands and after that date he was employed by the new owner, the City Motor Co. At the time that the company changed hands he testified that he thought it would be a good idea if he would own a new car demonstrator of the type that he sold so he decided to sell his Packard and buy a new Chevrolet demonstrator. He testified that he was not required to sell the Packard but just thought it would be a good idea. Mr. Stroop testified that the Carberrys agreed to pay a total amount of $1,820 for the Packard as follows: by paying the Stroops the amount of the down-payment they would have to make on a new Chevrolet demonstrator; by paying the remainder of the payments which the Stroops still owed to the First National Bank of Great Falls on the Packard; and by paying an amount, at a later time, without interest, so all of the amounts would total $1,820. Mr. Stroop claimed that the agreement was reached through a series of meetings and conversations between the Stroops and the Carberrys. His testimony concerning these meetings was, in essence, as follows :

(1) The first time that the sale was discussed was in early May of 1954 when Mr. Carberry came to ask Mr. Stroop about the book value of a Chrysler automobile which Mr. Carberry was interested in buying. At that time Mr. Stroop told Mr. Carberry that he was trying to sell the Packard. Mr. Carberry asked Mr. Stroop what he wanted for the Packard, and Mr. Stroop told him he wanted the “book value” of $1,820.

(2) Four or five days later Mr. Stroop had a conversation with Mr. Carberry near the Carberry property, on the county road, and the value and method of payment were discussed.

(3) Two or three days after this conversation, Mrs. Car-berry came to the Stroop home around noon and told the [9]*9Stroops that they, the Carberrys, were going to buy the Packard.

(4) The next evening, Mr. Stroop went over to the Car-berry home alone and mentioned an amount of $275 that would be required as a down-payment on the new Chevrolet demonstrator. At that time, the Carberrys said that a $275 down-payment would be fine.

((5) The next evening the Stroops went to the Carberry residence and talked with Mrs. Carberry. They told her that only $225 was required as a down-payment on the new Chevrolet demonstrator and, at that time, Mrs. Carberry gave them a cheek for that amount.

(6) Two days later, Mr. Stroop delivered the Packard to Mrs. Carberry.

(7) The next day, Mr. Carberry went with Mr. Stroop to the First National Bank and paid off the bank balance of $693.98 which the Stroops owed on the Packard.

(8) Three or four days later at the Stroop residence the Stroops signed over the title of the Packard to the Carberrys. At that time, Mr. Stroop told Mr. Carberry that he would not file a lien on the Packard for the unpaid balance, since he did not want to put the Carberrys to the trouble and expense involved.

(9) The next discussion was three months later, in September of 1954, when the Stroops asked the Carberrys when they would begin making payments on the unpaid balance.

To support his allegation that the Carberrys agreed to pay a total amount of $1,820 and not $918.98 for the Packard, Mr. Stroop testified that while he was working in April he left the Packard on the used car lot of his employer and that it was priced at $2,195 at that time. As a rebuttal witness, Mr. Stroop testified that about twenty days prior to May 15, 1954, he had an offer of $1,300 cash and a 1947 Hudson worth $400 for the Packard but he did not accept it. He did not identify the person making this offer or call him as a witness.

[10]*10The plaintiff, Alvina J. Stroop, substantially verified the testimony of her husband. She also testified that in September of 1954, when she went to the Carberry residence to ask them when they would start making payments on the balance owed, the Carberrys were very surprised.

Arnold M. Wirtz testified that in the Spring of 1954 he was at the Stroop residence and that Mr. Stroop offered to sell him the Packard at that time. He testified that the method and amount of payment discussed was that Wirtz would take over the payments that the Stroops owed the bank on the Packard and pay an amount later, at no interest, which would make the total purchase price the top “book value” of $1,800, or $1,850. However, he testified that he did not need an automobile at that time so he did not accept the offer.

The following testimony was offered into evidence by the defendants:

The defendant, Neil R. Carberry, testified that there was no discussion about the sale of the Packard at the time he discussed the “book value” of a Chrysler with Mr. Stroop.

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Bluebook (online)
359 P.2d 504, 139 Mont. 6, 1961 Mont. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroop-v-carberry-mont-1961.