*1 16,276. No. Company B. J. Shelton Muckle v. Theo. Engineering Company et al. P.

(218 1057) [2d] April 3, Rehearing May Decided 1950. denied 1950. G. Louis Isaacson, Mr. ior plaintiff in error. Ralph A. Mr. John T.

Mr. Cole, Maley, defend- in error. ants Banc.

En the court. Justice Moore Mr. delivered *2 the same The action here in parties appear this here- will court, in trial and we positions relative as the defendants. inafter refer to them and plaintiff as ca- In the corporate its complaint plaintiff alleged had assumed company; of the defendant pacity defendants, individual all the and liabilities of the assets time at the a business conducting partnership who were this matter of subject of the transaction which is the controversy; and further alleged: the 17, 1947,

“That heretofore on or about January thousand, motors one defendants did order from plaintiff at attached, with cord manufactured by to be an motor cord. agreed price plus per $2.45 said has manu- plaintiff, pursuant order,

“That said factured, motors, the especially defendants, offered its to deliver and does herein renew offer said defendants, motors defendants but to accept failed and refused for the same or to pay thereof. delivery defendants are indebted in

“That amount of $2450.00.” defendants,

On motion bill of or- particulars was filed, dered trial court to be plaintiff, identified be- correspondence compliance therewith, which formed the con- tween basis parties brought. suit was con- upon Nothing tract which this tained in said bill of altered the nature of particulars the action. allegations filed their answer ail denying

Defendants complaint, corporate contained in the ca- except setting de- up affirmative pacity parties, damages also filed counterclaims fenses. They and for failure warranty, breach of de- have been ordered them. alleged liver motors coun- or further defenses to consider unnecessary no evidence since terclaims defendants pleaded offered in thereof. support the conclusion trial jury, was to dis- moved for attorney evidence defendants’

plaintiff’s follows: of the action two upon grounds, missal upon established no contract “First, there has been this secondly, And, can base a case. failed to an action for and the [plaintiff] the price, requirement establish the essentials of that particular Uniform Act.” the trial dismissal, motion for ruling court said: reference “The motion for dismissal will contract has been established ground that no there was be denied. is still of The Court all the evidence fails to show no—that for a suit for the necessary elements *3 the sixth Mr. Isaacson namely element purchase price, dis- motion for grant referred to. So the Court will the missal.” for defendants moved Thereupon counsel counter- of defendants’ dismissal, prejudice, without This motion was granted. claims. the Uniform Act,

Section 63 Sales (3) chapter “Al- of Colorado, 1941, page 848, provides: Session Laws they in the has not if goods passed, the though property be resold for a if readily price, cannot reasonable the of Section are the (4) applicable, not provisions and, goods offer to deliver the to the may buyer, seller the receive them, may notify if the refuses buyer the held seller goods by that the buyer thereafter Thereafter the seller buyer. may bailee treat as maintain may as the an action buyer’s the goods (Italics supplied.) price.” in element,” the “sixth court, mentioning The trial seller, notification to the buyer by to the referred latter “as by were bailee for the goods that treated the action as suit to collect buyer,” a contract sell upon goods price, agreed property which the seller to transfer goods buyer agreed price per to the of $2.45 provisions motor. The trial further held that the court quoted, of the Uniform con- above were Act, trolling, and that since there that the was evidence buyer being seller had notified the held as bailee for him, no action for the contract specifies could be Plaintiff maintained. error on this ruling of the trial court. only

Plaintiff’s five was, evidence substance, that actually hundred of the motors been manufactured. proof relating Counsel for made an offer of damages allegedly sustained his in connection client completed, upon with the five hundred motors not alleged breach of contract the defendants. The of- fered evidence would have established, with reference to said five hundred motors, would profit per made motor hundred for the five $1.00 motors which were fact manufactured. It was salvage, plus contended, “that, the evidence cost, less expected profits, provable damage is a element attorney latter five hundred motors.” Defendants’ objected ground offer that such evidence immaterial in an was action for the purchase price sold; action was action; an such could had made an election and change damages its cause of action to one for proof for a breach of contract. offer denied, plaintiff specifies error thereon. request No was made com- amend its plaint. It contends that there was a notifica- sufficient *4 buyer goods purchased tion defendant being the seller as bailee, and its further counsel provisions chapter contends of section 64, page Session Laws of 228, Colorado, 1941, 849, was damages might to such as it entitled be able to estab- neglect resulting from lish, or refusal of defendants accept pay for said motors. asserts Plaintiff having proved entitled that, contract, a breach of regardless found remain in of court what should damages.” “proper 64, Said section be the measure of supra, provides as follows:

“(1) wrongfully neglects buyer or re- Where the may goods, pay fuses to for the seller against damages non- maintain an action him for acceptance.

“(2) damages loss The measure is the estimated of directly naturally ordinary resulting, course in the buyer’s events, of from the breach of contract.

“(3) an Where there is available market damages question, is, the measure of showing proximate special circumstances, absence of greater damage difference between amount, of a price price or current the contract and the market goods ought to been the time or times when the accepted, acceptance, or, if no time was fixed for then accept. at the refusal to time “(4) expense while labor or amount If, material necessary part on the seller enable him to obligations under the fulfill his contract to sell or the buyer repudiates the contract or the sale, sale, or proceed no further therewith, notifies the seller to greater damages buyer liable the seller have suffered if he did shall be for no nothing than the seller would carrying contract or out the sale after re- towards buyer’s repudiation ceiving or counter- notice of the profit seller would have made if the mand. The fully performed sale had been shall be or the contract damages.” estimating such considered in Questions to be Determined. holding that court correct First: Was trial payment

plaintiffs one to action was enforce under the terms a contract merchandise meaning personal property within the sec- the sale of (3), chapter 1941? Session Laws Colorado, tion 63 *5 question is answered in the affirmative. the developed, law contracts there been even before many the Uniform Sales Act, distinctions in rules applicable personalty ap- to sales of which were not plicable to other contracts. Professor Williston in his work, 560c, Williston on Sales, second edition, section page relating 1398, discusses the transition from cases adoption, sales to the in most Uniform states, of the Among things Sales Act. page 562, other states, he in section many 1400: “The enactment Act in right jurisdictions States has extended the seller’s in following English theretofore [which law denied price property passed] of the unless the had right opposite and limited his in those which took the view.” adopted

The Uniform Sales Act was in Colorado personal since and, it became effective, sales of - property, property, gov- contracts sell such provisions. formerly applied erned its All rules they such cases are without force or effect if conflict generally with the terms the act. The statute deals applies with the substantive law of sales. If it to the contract which herein then relies, rights parties, and liabilities of the and the remedies application available to must be them, resolved provisions. of its wording complaint clear from

It is plaintiff sought purchase price that one thousand to recover the significant alleged

motors. that, “defendants are indebted to in the amount nothing complaint There is whatever in $2450.00.” plaintiff sought damages, to indicate' that to recover distinguished price. from the contract provides specific Uniform

Since the Sales Act reme- which are available to a seller, dies each of which is separate and distinct from the others, a must, complaint, identify particular his transaction or occurrence forms basis of his. to relief. present complaint case clear from the It is was the occurrence thus identified transaction or pay alleged of the defendants failure alleged he motors which *6 pursuant defendants. to a contract with manufactured correctly case was held that The trial court governed by dealing with an the sections of the statute Price.” “Action the prima plaintiffs evidence make a Did

Second: statutory compliance showing condi with case the facie right precedent the the maintain an action to tions price to goods . sold? of negative. question As we This is answered that there the ruled trial court stated, hereinbefore tending establish the seller was no evidence to that goods- buyer that would be “thereafter notified the the buyer.” for the It cannot the seller as bailee prece such is a condition doubted notification be that right present, re dent, under the facts here to the to only points price. out the Counsel cover which contends letter to defendants he one written requirement compliance the with notifi a sufficient pertinent in said of bailment. statement cation ready complete, motors is “These are letter as follows: receipt your shipping go instruc forward statement amounts to more than an tions.” This goods buyer,” which an to deliver “offer precedent to the condition action. other giving required, the notice far short falls delivery, that the seller will refusal after buyer. goods as bailee for the We hold thereafter agree “bailee” or “bailment” is not neces word sarily Illustrated notification. sufficient essential Novelty 85 140, v. Conn. 81 Atl. Holt, & Co. Card Postal requirement the substance must However, 1061. clearly expressed words which will the use of creating purpose of the relation of bailee. indicate by giving purpose inferred to the cannot be Such 516 generally accepted

words used their usual here meaning. & G. Robison Kram, Co. v. N.Y.S. Inc., necessity establishing con- court discussed the precedent right maintain

ditions to the an action for among under the Uniform Sales Act, and things other stated:

“Two facts essential authorize an action for purchase price under said subdivision are not shown. They readily that cannot be resold for a price, and reasonable buyer that the seller notified the holds he as bailee for him.” change “Since statute was intended the com- important I mon pleaders am of law, it' is required should be to abandon common- pleading in such law form cases and follow the statute; and where, here, for the *7 goods sought, showing of undelivered is the facts passed buyer the statute title .has to the alleged.” should be alleged

In the case proved bar the neither nor it notification would hold the buyer. bailee rejecting

Third: Did the trial court err in by relating damage evidence to the offered alleged claimed to been have sustained because by breach the contract defendants? in, question negative. This also is answered plaintiff argues proved substance, counsel for that it a contract, breach thereof defendants; that un- der the thing Rules of Civil Procedure there is no such theory action; as a of a cause of and that was any justified by any entitled to relief evidence relevant any growing claim out of the contract and the al- leged breach thereof the defendants. The answer argument this is that essential matters of substantive law are not affected the Rules of Civil Procedure. rely upon the By complaint plaintiff elected to its pay delivery and to failure of defendants to purchase price or transaction occurrence as the already right As we based. its relief was prima make a failed to evidence stated, supporting action cause of the substantive case facie objection timely alleged complaint. was Since in the occurrence or made of another and different to evidence alleged warranting or relief, different transaction reject- sought complaint, did err in the court testimony. ing the offered elasticity Procedure the Rules of Civil

The operate procedure, relating de cannot matters of separate stroy of substantive character the distinct provided by specifically rights remedies statute. and judgment affirmed. and Mr. Alter Jus- Justice Hays, Mr. Mr. Justice tice Holland dissent. Rehearing. Petition

On dissenting. Mr. Justice Holland complaint herein the evi-

A consideration clearly support thereof, reveals a dence in admitted prima A relief facie of breach of contract. case majority clearly result and the net shown, that defendants is, that because stated prayed $2,450 indebted the amount of judgment an irrevocable amount, price. Only one cause election to sue for which was for breach of contract. existed, of action *8 parts complaint pertinent of the follows: as January or 17, “4. on about That heretofore motors did from one thousand defendants with cord order by plaintiff attached, to be manufactured at plus agreed price per motor 5. That cord. an plaintiff, $2.45 pursuant to order, manufactured, said especially for the said defendants, motors, and has of-

fered said and herein renew its offer to deliver does motors failed defendants, but defendants have that delivery pay and for the or refused to same thereof. 6. That are indebted to defendants in the amount $2,450.00.” disputed plaintiff, completed is order, completed partially 500 of the motors and the re- maining they Plaintiff 500, but assembled. ready, notified defendants that the 500 motors were awaiting shipping from the defendants. instructions pay That ac- the defendants failed to for the or motors cept delivery undisputed. undisputed thereof is It also is type spe- manufactured, as motors, were of a cially designed for defendants’ use and had market value for resale.

Primarily, figure because fixed the appears amount from the due defendants what exactly price, by the contract court the trial had elected to for the sue complied particular and had not with one Uni- plaintiff, form wit: Act, after offer de- liver the the defendants, and re- defendants’ fusal to that them, receive had not notified the defendants were thereafter held as the seller buyer, “bailee” com- dismissed plaint. complaint did Plaintiff not amend offer nor says, so, to do as it now there was no amendment could make. majority opinion, plaintiff

As now determined stating showing after a cause action, precluded recovery technicality relief, from a on pleadings. only pretense justice. Such aIf litigant just counsel, cause, can be- be so procedure wildered the inconsistencies of wording peculiarities of the so-called Uniform (for name) Sales Act I another and the to-, endanger rules of court, this such an justly escape, amount as is due, allow the debtor to *9 procedure. I commentary find on it is a sad our laws calling mandatory provision Uniform Act in the provides The act here obtained. the result “may” goods, “may” deliver the seller offer to buyer notify held thereafter buyer. was tied If the seller seller as bailee for the mandatory “shall,” we word the use down judgment might Time in this case. find an excuse for the question; permitted this full research on me did not I one however, state, Massachusetts, find that written, Uniform Sales Act as so but “shall” did substitute word sections involved here “may.” significant. This is my opinion, correspondence between contract, trial court be a defendants, compliance with the troublesome sec- discloses sufficient pro- if to be held to have act, tion of the is that section of the act in an “action for ceeded under clearly price.” Plaintiff stated a cause of action the under section Damages Nonaccept- “Action for figures happened Goods,” because it ance but use price, of the contract were the exact amount it pro- rules reformed held to be fatal. Under all now recover, entitled to on its cedure, was- figure theory damages, claimed, nor on exact but justly showing properly on the facts in the record recovery. If disclose these facts he was entitled basis then it is to be should relief, denied, to no thought properly available without if not amendment, necessary, pleadings. Union Nestor v. Western Supp. Telegraph 25 F. Co., 478. as here fact, shown,

Due to adapted specially to be manufactured to defendants’ peculiar value, had no then use, market the amount could to consider that it recover entitled equal purchase price. to' the would be an amount profit permitted under Act to recover the if made the contract or sale had been would have fully performed. surely proces This includes all costs sing profit the order as well as the thereon. to be made (222 As is said Percival 207 Ia. 245 N.W. Sea, Co. v. 886), purchase price “If has no the entire value, then *10 may right obtained the seller. Without such compensation.” remuneration, would not there be full question Now of election. Plaintiff could not pursu- be held an election unless irrevocable it was ing one of two To inconsistent establish the remedies. indebtedness, and relief, a same were facts necessary support here both The state remedies. upon by plaintiff facts as to relied a of contract breach liability part and on the of .the defendants is consistent purchase price either with or for of one for action, that damages, repugnant and same facts are not liability or establishment under the companion section I other Act. do find procedural provided remedies are inconsistent be- fundamentally cause the assertion of one mode of re- negate repudiate or dress does not the liability The facts other. as to the existence defendants’ are obvious under both sections of the Act. allege

It is to be noted that did not reliance any any particular on section of statute, if the therefore trial determined court cause action and could not recover under section 63 Act, justified dismissing complaint it was in which employed wording the almost identical of section complaint 64. In other words, stated a claim for damage. may, any Let it fall law, where it entitled to remain court. The effect majority opinion is, I am fearful does establish precedent, request prayer complaint that a of a pleader. can to be be held an irrevocable election nothing An amendment would have been more than an prayer. amendment Under our rules civil procedure, many pleader of our statutes, a is stalked by the shadow of an irrevocable election. and fore- above reading that after

I am confident majority I dissent to the determined it can-be going be granted. I should rehearing think a Hays in this join Alter Mr. Justice Mr. Justice dissent. 16,326.

No. Highway Engineer et v. Golden al. Watrous, State et al. Chamber of Commerce 498) P. (218 [2d] April 1950. Decided