Hagen v. Sherman

BRAY, J. Three questions are raised by this appeal by defendant from a judgment in favor of plaintiff in the sum of $2,500.1 They are: (1) Was the contract rescinded by mutual consent? (2) Was it rescinded by defendant for unilateral mistake ? (3) Does the evidence support the award of damages?

Evidence.2

Defendant owned a war surplus crane. In early November, 1953, plaintiff saw it in defendant’s yard. There were some negotiations then between the parties concerning its purchase without a bucket by plaintiff. He testified that he had agreed to buy it for $800 or $900 but that when he went to arrange for payment defendant informed him it had been sold. Defendant’s version was that plaintiff offered him $800 for the crane and defendant refused the offer. Later an oral agreement was entered into between the parties for the purchase of the crane plus a clamshell bucket by plaintiff for $1,750. November 17th, plaintiff gave defendant a check for $1,802.50 (the purchase price plus tax). The same day defendant gave plaintiff a sales slip or “invoice” describing the crane, giving the terms as “cash” showing the charge of $1,802.50 and marked “Paid by check No. 1.” Plaintiff then understood that the crane became his. The next day plaintiff arranged with a draying company to move the crane to his residence. The following morning defendant phoned plaintiff and told him that the crane had been sold by defendant’s brother to another person and that plaintiff should come to defendant’s office and pick up his check. Defendant refused to tell plaintiff to whom the crane was sold.3 Plaintiff told defendant that he would come to see defendant. Defendant testified that [30]when plaintiff offered him a cheek defendant said “That changes the' deal altogether” as defendant considered it was no deal until defendant received the cash. Plaintiff assured him the check was good and then defendant said “. . . what can I lose. I still have the crane.” Defendant testified that when he told plaintiff about,the alleged sale by the brother plaintiff said he would be down to see defendant. Plaintiff went to defendant’s office twice thereafter and left word for defendant to phone plaintiff, as defendant was not there. About a month after the sale to plaintiff, plaintiff stopped payment on the cheek. The crane is still in defendant’s possession.

Plaintiff sued for breach of contract. Defendant denied the material allegations of the complaint and set up as a special defense that the contract was executed without any consideration. The court found against the special defense and in favor of plaintiff on the allegations of the complaint, awarding, however, $2,500 as the difference between the contract price and the reasonable market value of the crane, instead of $12,500 asked for in the complaint as being the cost of procuring a similar crane and loss of profits.