Goldstein v. McNeil

NOURSE, P. J.

Plaintiff, seller, recovered damages for breach of an oral contract of sale of 14 secondhand automobiles. The sole contention of the appellants—defendants— is that the trial court erred in holding them estopped from asserting the statute of frauds, to wit, section 1973a Code of Civil Procedure, reading in part: “1. A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.”

The findings of the trial court are in general not attacked as unsupported by the evidence, although appellants’ statement of facts deviates strongly from them. The findings based on conflicting evidence are binding on this court; they are to the following effect:

Plaintiff, a used car dealer, with principal place of business in Los Angeles, on July 26, 1950, by oral contract sold to defendants 14 used automobiles for a total sum of $29,450, free on board Shreveport, Louisiana, the automobiles to be delivered at defendants’ place of business in San Francisco on or about August 16, 1950, and to be high-class, modern and in salable condition. Defendants paid plaintiff $910 for caravan expenses and requested him to purchase caravan permits for the cars in the name of defendant Neal McNeil.

[610]

Plaintiff secured the permits at a cost of $210—expended by him. On or about August 16, 1950, plaintiff was ready and willing to deliver the 14 automobiles which in caravan had reached Fresno, California, but defendants, who had inspected them there refused to accept them and pay for them. Plaintiff’s tender was in substantial compliance with the contract and the refusal was unjustifiable. After notice to defendants, plaintiff resold the automobiles for $26,400, which price was then the reasonable market value; the necessary expenses on the resale were $815.22, so that there is a total deficiency of $3,865.22 due and owing by defendants. By reason of the expenditure of $210 for caravan permits and plaintiff’s substantial performance of the contract plaintiff suffered a substantial change of position, thereby estopping the defendants from asserting the statute of frauds, so that plaintiff’s action is not barred by section 1973a Code of Civil Procedure.