CLEVELAND CARTER ET AL. v. RYBYRN FORD SALES, INC.
5-5146
Supreme Court of Arkansas
March 9, 1970
451 S. W. 2d 199
“One who seeks to recover under an alleged contract to adopt has the burden of establishing the contract by clear and convincing evidence. The rule is stated in
1 C. J., p. 1379, § 28 , as follows:‘The burden is on the person claiming the benefit of an alleged contract for adoption to establish it by clear, cogent and convincing evidence.’ ”
The evidence in the case at bar did not measure up to the test laid down in the above cases and the decree of the chancellor must be affirmed.
Affirmed.
Tiner & Henry for appellants.
CONLEY BYRD, Justice. Appellee Ryburn Ford Sales, Inc., brought this action against appellants Cleveland Carter and Anthony Carter to recover a deficiency of $845.31 arising out of the repossession and sale of a 1968 Ford truck. Appellants answered denying each material allegation and counterclaimed for damages of $400, alleging that Ryburn Ford Sales, Inc. had held a private sale and had purchased at their own private sale in violation of
“MR. HENRY: At this time defendants would renew their motion for a directed verdict, but reserving at all times the right to submit this matter to a jury for a decision if the motion is not granted.
MR. TINER: Let the record show that the defend
ants, in addition to asking for a motion for a directed verdict at this time, have offered to the Court other instructions which the defendants would like for the Court to give in the event the directed verdict is not granted. MR. VAN AUSDALL: At this time the plaintiff, Ryburn Ford, moves the Court for a directed verdict in favor of the plaintiff for the reason that it is undisputed that the contract was entered into; is not otherwise invalid; all requirements of law pertaining to notice and sale were complied with, and that there is no issue to submit to the jury; and for the further reason that the defendants have moved for a directed verdict also, and it now resolves itself into a matter to be disposed of by the Court.”
After the court granted appellee‘s motion for directed verdict and entered judgment against appellants for $845.31, appellants had the record show that the following instructions were offered:
“DEFENDANTS’ REQUESTED INSTRUCTION NO. 1:
A secured party may not buy the collateral at private sale if the collateral is of a type not customarily sold on a regular market or is a subject of widely distributed standard of price quotation. If you find from the evidence presented that the plaintiff purchased the vehicle in question at a private sale, you must find for the defendant.“DEFENDANTS’ REQUESTED INSTRUCTION NO. 2:
If you find that the disposition of the collateral has occurred and the plaintiff has failed to comply with the requirements of the Uniform Commercial Code then the defendant is entitled to recover from the plaintiff any loss caused by a failure to comply with the Uniform Commercial Code.”
The record shows that Mr. Frank C. Ryburn, executive vice-president and general manager of Ryburn Ford Sales, a Jonesboro corporation, has had many years experience in automobile sales. On July 25, 1968, appellants bought a 1968 truck and grain bed for $4,529.00. After a $500 down payment there remained a total time price of $4,569.30, payable in three annual installments of $1,523.10. The contract was assigned to Ford Motor Credit Co. and upon default was repurchased by Ryburn Ford Sales for $4,245.31. After repurchase Mr. Ryburn promptly notified appellants the truck would be sold on March 6, 1969. On March 6, Mr. Ryburn called several dealers who were not interested in buying the vehicle. He then called together four of his salesmen and asked, “What amount would you be willing to let this be placed on your books for, for sale at a profit?” The highest bid he received from his salesman was $3,300. He says that he thought the truck was worth $3,400 and that is what he placed it on the books for and credited the contract. After the truck was placed on his books, a $530 hydraulic hoist was installed on the truck and $25 spent to transfer the warranty. Thereafter the truck was sold to another purchaser for $4,450. He estimates that after overhead he made a profit of $5.50. Other testimony by Mr. Ryburn shows that he used an NADA book with published data or information giving some indication of what vehicles are worth and that because of the particularly low mileage on this vehicle he paid $500 in excess of what the book showed.
Appellant Cleveland Carter testified that the value of the vehicle at the time of the sale was $4,400.
As we understand the record and the appropriate law, appellants, by moving for a directed verdict while reserving their right to submit the issue to a jury in the event the directed verdict should be overruled, did not waive their right to have any disputed questions of fact submitted to the jury. In Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764 (1909), we held:
“The appellant did not waive the right to have any disputed questions of fact submitted to the jury. The bill of exceptions show that appellant presented other prayers for instructions after its prayer for peremptory verdict. There is no waiver in such cases. See note to Love v. Scatcherd, 77 C. C. A. 1, where numerous authorities are collated.”
In Gee v. Hatley, 114 Ark. 376, 170 S. W. 72 (1914), we held:
“(1) To authorize the court to withdraw from the consideration and determination of the jury the questions of fact involved in the litigation, it is essential that, at the conclusion of all the evidence in the case, the plaintiff and defendant should each request the court to direct a verdict, and this request must not be accompanied by any request for
instructions to the jury which would require the jury to determine any controverted question of fact.”
In Gill v. Burks, 207 Ark. 329, 180 S. W. 2d 578 (1944), it was stated:
“It has been repeatedly held that though both parties request peremptory instructions, yet where one requested another instruction submitting the issue to the jury he will not be deemed to have waived his right to have the issue decided by the jury.”
In 53 Am. Jur. Trial § 344 (1945), the same principle is stated:
“It is generally conceded that the rule that a simultaneous motion by both parties for a directed verdict operates as a waiver of submission of any question of fact to the jury does not apply where a contrary intention is manifest, or where the denial of the motion is followed by an immediate request for submission of the facts to the jury....”
Also see Aetna Ins. Co. Inv. v. Warren Adm‘x, 231 Ark. 405, 329 S. W. 2d 536 (1959), and the numerous causes cited in 16A Ark. Digest, Trials, Key No. 177.
As we view the evidence neither party was entitled to a directed verdict as a matter of law. The Uniform Commercial Code,
“(1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to the Article on Sales (Article 2 [
§§ 85-2-101 —85-2-725 ]) . . . .
(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold on a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”
Appellee readily recognizes our opinion in Norton v. National Bank of Commerce, 240 Ark. 143, 398 S. W. 2d 538 (1966), where we held that a used automobile did not come within the term “a type customarily sold on a recognized market” for purposes of holding a sale without notice. However, appellee suggests that the last sentence of
Since the disposition of the collateral by appellee was not in accordance with the Article on Secured Transactions (
We held in the Norton case that a secured party‘s failure to comply with the provisions of the Uniform Commercial Code with references to disposition of the collateral did not ipso facto relieve the debtor from his obligation for any deficiency. In view of this holding it also follows that appellants were not entitled to a directed verdict as a matter of law.
Reversed and remanded.
HARRIS, C. J. and FOGLEMAN, J., dissent.
JOHN A. FOGLEMAN, Justice, dissenting. I am in accord with what I believe to be the position of the majority as to the effect of requests by both parties for a directed verdict. I am not in accord with the application of the rule made in the majority opinion.
It has been made quite clear by the decisions of this
This rule is of no practical effect if the majority‘s application is correct. Any party but asking any instruction, however erroneous or abstract, could avoid this rule. I do not believe that this is intended.
An examination of the two requested instructions clearly indicates to me that appellants did not present requests that required the submission of any issue. Requested instruction No. 1 was a binding instruction to return a verdict for appellant, because Frank Ryburn, the responsible officer of appellee, himself removed any doubt about the sale having been a private one. Surely, the majority does not mean to say that requested instructions that would inevitably result in a verdict for the party asking them are “other instructions.” There are many different forms of requests by which an instructed verdict may be sought. Where each requested instruction is, in effect, a peremptory instruction, the rule applies. Upson v. Robison, 179 Ark. 600, 17 S. W. 2d 305.
The instruction that appellant was entitled to recover any loss caused by a failure to comply with the Uniform Commercial Code would have submitted no issue to the jury. No provision or requirement of this comprehensive code is mentioned or set out. I cannot understand, and I doubt that the average juror could understand what, if any, issue he was to decide. To say
The purpose of an instruction to the jury is to define the law applicable to the issues of fact in a particular case and to furnish a guide to assist in reaching a verdict. Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S. W. 2d 259; J. C. Engleman, Inc. v. Briscoe, 172 Ark. 1088, 291 S. W. 795. This second requested instruction certainly would have performed none of these functions. It was abstract in that, if it submitted any issue to the jury, it was so comprehensive as to submit issues not raised by the pleadings or evidence. Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226. There are literally dozens of commercial code requirements. Clearly, this instruction was so abstract that it would have left the determination of both law and facts to the jury and so general as to leave the jury to apply its own devices to the testimony, and should not have been given. See Wisconsin & Arkansas Lumber Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. It was so deficient in this respect as to amount to no instruction. I submit that these two requests did not render improper the trial court‘s proceeding to determine the issues.
In Interstate Business Men‘s Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51, it was held that one who sought a peremptory instruction did not waive
I do not agree with the conclusion that a secured party does not comply with the requirements of the Uniform Commercial Code as a matter of law when he purchases a used automobile at his own private sale, nor do I agree that the disposition of the collateral here was not in compliance with
A review of
Mr. W. W. Bryant, Jr., a man of wide experience in the automobile business since 1936 and who has served as an appraiser of automobiles for 19 years, testified on this point. He stated that the NADA manual is a widely distributed guide or index used as a guide by all automobile dealers, banks and finance companies. According to him, it shows not only the factory average delivered price and loan value for each series in the truck line, but also the retail value and wholesale value. He stated that this manual is also used by insurance companies for replacement purposes and as “a unit symbol” on cars and trucks.
Even though the circuit judge “directed a verdict,” the sole question for our determination is whether there was substantial evidence to support the judgment. Strange v. Planters Gin Co., 142 Ark. 100, 218 S. W. 188; Casteel v. Lee Williams Theatres, Inc., 221 Ark. 935, 256 S. W. 2d 732. I submit that the testimony of Bryant constitutes substantial evidence. His testimony could well be taken to show that there was a widely distributed standard price quotation for the type of collateral involved here. I do not think that we could say that this book was or was not a widely distributed standard price quotation as a matter of law.
I would affirm the judgment.
HARRIS, C. J., joins in this dissent.