Rehearing Denied May 20, 1958.
[84 Ariz. 127] Silver, Silver & Ettinger, Tucson, for appellant.
Merchant & Parkman, Tucson, for appellees.
UDALL, Chief Justice.
This is an appeal by Beaudry Motor Company, an Arizona corporation (defendant-appellant), from a money judgment entered against it in an action brought by plaintiff (appellee) Louis D. Truax, et ux. for the claimed breach of an oral contract. The case was tried to the court, sitting without a jury. The parties will hereafter be referred to as they were in the lower court, viz.: plaintiff and defendant.
The lawsuit arose out of plaintiff's agreement to purchase from defendant a new Chrysler Imperial automobile. On of the [84 Ariz. 128] principal points of difference is whether the defendant motor company agreed to accept two used cars, i. e., a Packard and a Lincoln as trade-ins on the deal. To resolve these differences will require a careful analysis of the evidence and an interpretation of the 'Purchase Order' infra, which was admittedly signed by plaintiff.
Plaintiff's amended complaint--upon which the case was tried--prayed for judgment in the sum of $1,356.27 for an alleged breach by defendant of its oral contract to accept a Lincoln automobile as an additional trade-in on the new Chrysler covered by the purchase order. Obviously the measure of damage sought to be applied is the value of the Packard car less the lien that was paid off by defendant. Defendant by its answer denied a breach of contract and counterclaimed for damages in the sum of $2,000 for breach of the alleged written contract, i. e., the purchase order for the new Chrysler Imperial. Plaintiff's answer to the counterclaim admitted signing the incomplete purchase order but alleged there was a contemporaneous oral agreement by which defendant agreed to accept the Lincoln automobile as an additional tradein.
At the conclusion of the trial defendant moved for judgment, which motion was denied. Thereafter judgment was entered in favor of plaintiff and against defendant for $811.30, plus costs, and 'that defendant take nothing by its counterclaim.' After denial of defendant's motion for a new trial this appeal was taken. No assignment of error is predicated upon that portion of the judgment denying defendant any relief upon its counterclaim.
A short statement of the facts, stated in a light most favorable to a sustaining of the judgment, is necessary to an understanding of the problems presented by this appeal.
In October 1654, plaintiff began negotiating with James D. Emanuel, defendant's sales manager, for the purchase of a 1954 Chrysler Imperial automobile. When the anticipated changes on the new 1955 models were explained to plaintiff he decided to wait and purchase the new model. In order to take advantage of the current higher
resale price, plaintiff then conveyed and delivered his 1953 Packard automobile to defendant, although he was not to receive his new car until June 1955. Later the Packard was sold by defendant. Plaintiff, a salesman by trade, needed means of transportation during the interim and so he purchased a 1954 Lincoln automobile. It is the admission of testimony relating to the disposition of this Lincoln that creates the primary issue raised by this appeal.
The only instrument in writing covering the transaction is the following, which is a facsimile of plaintiff's copy of the 'Car Purchase Order', as it was when signed by him, viz.:
[84 Ariz. 130]
The reverse side of this printed form contains a 'Customer's Warranty on Trade-In', providing, inter alia, that the trade-in is unencumbered. The date for delivery of this trade-in is blank. Also a section entitled 'New Car Warranty' and one ...