Meserve v. Smith Brothers

WORKS, J.

Defendants are dealers in automobiles. Plaintiff purchased from them a “new” car, turning in his “old” car in part payment to the amount of $1,900. The contract evidencing the deal was in writing and contained the provision: “Old car to be sold for as much more than $1,900 as possible and net balance to be credited to” plaintiff. Defendants then transferred the old car to a third party for the sum of $1,600 in cash and a used Chevrolet car, which, to quote from appellant’s brief, “was taken in by defendants at the agreed figure” of $750. Before making this deal defendants expended the sum of $162.65 in repairs on the old car. As the sum of $1,600, representing the cash received by defendants on the old car, and the sum of $750, the “agreed figure” placed on the Chevrolet, together make the sum of $2,350, plaintiff brought this action against defendants for the difference between $1,900 and $2,350, or $450, basing his claim upon the ground that the old car had been sold under the writing above mentioned for $450 more than the $1,900 specified therein. Defendants made their defense upon the theory that, although the Chevrolet car was taken by them at the agreed price of $750, it was worth but $350. They also contended that their expenditure of $162.65 on the old car was necessary to put it in condition for the market. They insisted, therefore, that the old car had not been sold for more than $1,900 and that plaintiff could not recover. Defendants had judgment that plaintiff take nothing and the latter appeals.

Although the points argued in the briefs are many, they really depend in the main upon the settlement of but two questions: 1. Had respondents the right to make expenditures on the old car in order to render it fit for sale or exchange? 2. Can appellant insist that as between him and respondents the Chevrolet car shall stand as the equivalent of $750?

[1]

We take these questions up in their order. It is to be remembered that the contract between the parties pro-

[685]

Tided that the old car was to be sold for as much more than $1,900 as possible, the “net balance” to be credited to appellant. The expression “net balance” is not difficult to understand. Moreover, it has been defined in terms which fit sufficiently the present case. 'The phrase was employed in a telegram concerning a sale of stocks, the wire reading, in part, “We will give you net balance to-morrow in Philadelphia.” It was said by the court before which the transaction came for consideration, “As applied to the proceeds of the sale of stock, the phrase ‘net balance’ means, in commercial usage, the balance of the proceeds after deducting the expenses incident to the sale”