Mcmillan V Meuser

- McMillan v Meuser Material & Equipment Co., Inc., 541 S.W.2d 911 (1976)

The trial court, sitting as a jury, found (Joe) McMillan breached a contract to buy a bulldozer from Meuser(CO) and assessed $2,700 as Meuser(CO) damages ($2,595 actual and $105 incidental).

Parties:

Buyer: (Joe) McMillan (Appellant)

Seller: Meuser (CO) (Appellee)

Issue:

On December 13, 1973, the parties entered into their agreement. The purchase price, including a bellhousing, was $9,825, f.o.b. Springdale. Meuser(CO) arranged transportation of the bulldozer to Greeley, Colorado, the residence of appellant (Joe)

Length of time between breach and resale of equipment (14 months).

Difference of price between contract price and resale price

Position of Parties:

Difference on delivery date

On December 24, 1973, (Joe) McMillan stopped payment on his check asserting that since the agreed delivery date was December 21, the delivery was past due.

Meuser's (CO) version is that the delivery date was January 1, 1974

After unsuccessful negotiations between the parties or about two months after the appellant (Joe) purchaser stopped payment on his check, Meuser(CO).

On March 5, 1975, or about fourteen months following the alleged breach of the purchase contract, Meuser(CO)sold the bulldozer for $7,230 at a private sale. During this fourteen month interval, the equipment remained unsheltered, although regularly serviced, on an Arkansas farm.

Held:

The court's award of $105 for incidental expenses incurred by Meuser(CO)

As to the resale of the bulldozer, the Meuser(CO), admittedly, is in the construction business, sells bulldozer and was aware of the declining market. As previously indicated, as a matter of law, the long delay in the resale of the bulldozer by the Meuser(CO) is commercially unreasonable. Consequently, the judgment is affirmed upon the condition that the award of $2,595 for actual damages is offered as a remittitur within the next seventeen days. Otherwise, the...