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11.9 Buyers Right to demand specific performance Contract Sales and Lease Contracts: Performance and Breach

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622 S.W.2d 694, 26 A.L.R.4th 284, 31 UCC Rep.Serv. 851
(Cite as: 622 S.W.2d 694)

30XVI(I) Questions of Fact, Verdicts, and


Findings
Missouri Court of Appeals, Eastern District, Divi- 30XVI(I)3 Findings of Court
sion Four. 30k1010 Sufficiency of Evidence in
Dr. Joseph T. SEDMAK, III and Linda Sedmak, Support
Plaintiffs-Respondents, 30k1010.1 In General
v. 30k1010.1(6) k. Substantial
CHARLIE'S CHEVROLET, INC., a Missouri Cor- Evidence. Most Cited Cases
poration, Defendant-Appellant.
No. 41378. Appeal and Error 30 1012.1(1)

June 16, 1981. 30 Appeal and Error


30XVI Review
In action for breach of contract to sell automobile, 30XVI(I) Questions of Fact, Verdicts, and
the Circuit Court of the City of St. Louis, Richard J. Findings
Mehan, J., ordered specific performance, and auto- 30XVI(I)3 Findings of Court
mobile dealership, as prospective seller, appealed. 30k1012 Against Weight of Evidence
The Court of Appeals, Satz, J., held that: (1) manu- 30k1012.1 In General
facturer's suggested retail price was sufficiently 30k1012.1(1) k. In General.
definite to meet price requirements of enforceable Most Cited Cases
contract; (2) part payment evidenced existence of On review of court-tried case, Court of Appeals
contract as satisfactorily as would written memor- sustains judgment of trial court unless judgment is
andum of agreement; and (3) prospective buyers not supported by substantial evidence, is against
showed entitlement to specific performance. weight of evidence or erroneously declares or ap-
plies law.
Judgment affirmed.
[2] Appeal and Error 30 994(3)
West Headnotes
30 Appeal and Error
[1] Appeal and Error 30 846(1)
30XVI Review
30 Appeal and Error 30XVI(I) Questions of Fact, Verdicts, and
30XVI Review Findings
30XVI(A) Scope, Standards, and Extent, in 30XVI(I)1 In General
General 30k994 Credibility of Witnesses
30k844 Review Dependent on Mode of 30k994(3) k. Province of Trial
Trial in Lower Court Court. Most Cited Cases
30k846 Trial by Court in General In conducting review of court-tried case, Court of
30k846(1) k. In General. Most Appeals does not judge credibility of witnesses,
Cited Cases since such task properly rests with trial court.
V.A.M.R. 73.01(c)(2).
Appeal and Error 30 1010.1(6)
[3] Sales 343 87(3)
30 Appeal and Error
30XVI Review 343 Sales
343II Construction of Contract

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343k87 Evidence to Aid Construction 185k95(1) k. In General. Most Cited


343k87(3) k. Weight and Sufficiency. Cases
Most Cited Cases Part payment satisfies statute of frauds, not for en-
Evidence in action for breach of contract to pur- tire contract, but only for that quantity of goods to
chase automobile was sufficient to support trial which part payment can be apportioned, since part
court's conclusion that parties agreed that selling payment alone does not establish oral contract's
price would be price suggested by manufacturer, quantity term. V.A.M.S. § 400.2-201(3)(c).
and whether such price accurately reflected market
demands on any given day was immaterial. [7] Frauds, Statute Of 185 95(1)

[4] Sales 343 1(3) 185 Frauds, Statute Of


185VII Sales of Personal Property
343 Sales 185VII(C) Giving Earnest or Part Payment
343I Requisites and Validity of Contract 185k95 Part Payment
343k1 Nature and Essentials of Contract for 185k95(1) k. In General. Most Cited
Sale of Personal Property in General Cases
343k1(3) k. Agreement as to Price and Statute validating divisible oral contract only for as
Time of Payment. Most Cited Cases much of goods as has been paid for was drafted to
Manufacturer's suggested retail price for auto- provide method for enforcing oral contracts where
mobile was ascertainable; thus, if parties chose, there is quantity dispute, and does not necessarily
such price was sufficiently definite to meet price re- resolve statute of frauds problem where there is no
quirements of enforceable contract, and failure to quantity dispute, since neither language of statute
specify selling price in dollars and cents did not nor its logical dictates necessarily invalidate oral
render contract void or voidable. V.A.M.S. § contract for indivisible commercial unit where part
400.2-305. payment has been made and accepted; if there is no
dispute as to quantity, part payment still retains
[5] Sales 343 1(3) probative value to prove existence of contract.
V.A.M.S. § 400.2-201(3)(c).
343 Sales
343I Requisites and Validity of Contract [8] Frauds, Statute Of 185 95(1)
343k1 Nature and Essentials of Contract for
Sale of Personal Property in General 185 Frauds, Statute Of
343k1(3) k. Agreement as to Price and 185VII Sales of Personal Property
Time of Payment. Most Cited Cases 185VII(C) Giving Earnest or Part Payment
As long as parties to contract for purchase of auto- 185k95 Part Payment
mobile agreed to method by which price was to be 185k95(1) k. In General. Most Cited
determined and as long as price could be ascer- Cases
tained at time of performance, price requirement for Where there is no quantity dispute, part payment
valid and enforceable contract was satisfied. evidences existence of oral contract as satisfactorily
as would written memorandum of agreement under
[6] Frauds, Statute Of 185 95(1) liberalized criteria of Uniform Commercial Code.
V.A.M.S. §§ 400.1-101 et seq., 400.2-201(3)(c).
185 Frauds, Statute Of
185VII Sales of Personal Property [9] Frauds, Statute Of 185 106(1)
185VII(C) Giving Earnest or Part Payment
185k95 Part Payment 185 Frauds, Statute Of

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(Cite as: 622 S.W.2d 694)

185VIII Requisites and Sufficiency of Writing 358I Nature and Grounds of Remedy in General
185k105 Contents of Memorandum 358k8 k. Discretion of Court. Most Cited
185k106 In General Cases
185k106(1) k. In General. Most Cited Although determination whether to order specific
Cases performance lies within discretion of trial court,
Under Uniform Commercial Code, written memor- specific performance goes as matter of right when
andum takes oral contract out of statute of frauds if relevant equitable principles have been met and
it evidences contract for sale of goods, if it is contract is fair and plain.
“signed,” including any authentication which iden-
tifies party to be charged and if it specifies a quant- [13] Specific Performance 358 69
ity. V.A.M.S. § 400.2-201 comment.
358 Specific Performance
[10] Frauds, Statute Of 185 95(1) 358II Contracts Enforceable
358k67 Contracts Relating to Personal Prop-
185 Frauds, Statute Of erty
185VII Sales of Personal Property 358k69 k. Specific Articles or Goods.
185VII(C) Giving Earnest or Part Payment Most Cited Cases
185k95 Part Payment In action for specific performance of contract to sell
185k95(1) k. In General. Most Cited automobile, conclusion that purchasers had no ad-
Cases equate remedy at law for reason that they could not
Where part payment evidenced contract for sale of go upon open market and purchase automobile of
automobile, dealership was identified as one who kind at issue with same mileage, condition, owner-
received payment and quantity was not in dispute ship and appearance except, if at all, with consider-
because prospective buyers were claiming to have able expense, trouble, loss, great delay and incon-
purchased only one automobile, part payment evid- venience was correct expression of relevant law and
enced existence of contract as satisfactorily as supported by evidence.
would written memorandum of agreement under *695 Kappel, Neill & Staed, C. William Portell, Jr.,
Uniform Commercial Code. V.A.M.S. §§ St. Louis, for defendant-appellant.
400.2-201(3)(c), 400.2-201 comment.
Moser, Marsalek, Carpenter, Cleary, Jaeckel,
[11] Frauds, Statute Of 185 95(1) Keaney & Brown by William L. Davis, St. Louis,
for plaintiffs-respondents.
185 Frauds, Statute Of
185VII Sales of Personal Property
185VII(C) Giving Earnest or Part Payment SATZ, Judge.
185k95 Part Payment
This is an appeal from a decree of specific perform-
185k95(1) k. In General. Most Cited
ance. We affirm.
Cases
Where there is no dispute as to quantity, part pay- In their petition, plaintiffs, Dr. and Mrs. Sedmak
ment for single, indivisible commercial unit valid- (Sedmaks), alleged they entered into a contract with
ates oral contract under Uniform Commercial Code. defendant, Charlie's Chevrolet, Inc. (Charlie's), to
V.A.M.S. § 400.2-201(3)(c). purchase a Corvette automobile for approximately
$15,000.00. The Corvette was one of a limited
[12] Specific Performance 358 8
number manufactured to commemorate the selec-
358 Specific Performance tion of the Corvette as the Pace Car for the Indiana-
polis 500. Charlie's breached the contract, the Sed-

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maks alleged, when, after the automobile was de- Charlie's Chevrolet, about the availability of the
livered, an agent for Charlie's told the Sedmaks Pace Car. Mr. Kells said he did not have any in-
they could not purchase the automobile for formation on the car but would find out about it.
$15,000.00 but would have to bid on it. Kells also said if Charlie's were to receive a Pace
Car, the Sedmaks could purchase it.
The trial court found the parties entered into an oral
contract and also found the contract was excepted On January 9, 1978, Dr. Sedmak telephoned Kells
from the Statute of Frauds. The court then ordered to ask him if a Pace Car could be ordered. Kells in-
Charlie's to make the automobile “available for de- dicated that he would require a deposit on the car,
livery” to the Sedmaks. so Mrs. Sedmak went to Charlie's and gave Kells a
check for $500.00. She was given a receipt for that
Charlie's raises three points on appeal: (1) the exist- amount bearing the names of Kells and Charlie's
ence of an oral contract is not supported by the Chevrolet, Inc. At that time, Kells had a pre-order
credible evidence; (2) if an oral contract exists, it is form listing both standard equipment and options
unenforceable because of the Statute of Frauds; and available on the Pace Car. Prior to tendering the de-
(3) specific performance is an improper remedy be- posit, Mrs. Sedmak asked Kells if she and Dr. Sed-
cause the Sedmaks did not show their legal remed- mak were “definitely going to be the owners.” Kells
ies were inadequate. replied, “yes.” After the deposit had been paid,
Mrs. Sedmak stated if the car was going to be
[1][2] This was a court-tried case. The scope of our
theirs, her husband wanted some changes made to
review is defined by the well-known principles set
the stock model. She asked Kells to order the car
out in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc
equipped with an L82 engine, four speed standard
1976). We sustain the judgment of the trial court
transmission and AM/FM radio with tape deck.
unless the judgment is not supported by substantial
Kells said that he would try to arrange with the
evidence, unless it is against the weight of the evid-
manufacturer for these changes. Kells was able to
ence or unless it erroneously declares or applies the
make the changes, and, when the car arrived, it was
law. Id. at 32. In conducting our review, we do not
equipped as the Sedmaks had requested.
judge the credibility of witnesses. That task quite
properly rests with the trial court. *696 Rule Kells informed Mrs. Sedmak that the price of the
73.01(c)(2); Kim Mfg., Inc. v. Superior Metal Pace Car would be the manufacturer's retail price,
Treating, Inc., 537 S.W.2d 424, 428 approximately $15,000.00. The dollar figure could
(Mo.App.1976). not be quoted more precisely because Kells was not
sure what the ordered changes would cost, nor was
In light of these principles, the record reflects the
he sure what the “appearance package”-decals, a
Sedmaks to be automobile enthusiasts, who, at the
special paint job-would cost. Kells also told Mrs.
time of trial, owned six Corvettes. In July, 1977,
Sedmak that, after the changes had been made, a
“Vette Vues,” a Corvette fancier's magazine to
“contract”-a retail dealer's order form-would be
which Dr. Sedmak subscribed, published an article
mailed to them. However, no form or written con-
announcing Chevrolet's tentative plans to manufac-
tract was mailed to the Sedmaks by Charlie's.
ture a limited edition of the Corvette. The limited
edition of approximately 6,000 automobiles was to On January 25, 1978, the Sedmaks visited Charlie's
commemorate the selection of the Corvette as the to take delivery on another Corvette. At that time,
Indianapolis 500 Pace Car. The Sedmaks were in- the Sedmaks asked Kells whether he knew anything
terested in acquiring one of these Pace Cars to add further about the arrival date of the Pace Car. Kells
to their Corvette collection. In November, 1977, the replied he had no further information but he would
Sedmaks asked Tom Kells, sales manager at let the Sedmaks know when the car arrived. Kells

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(Cite as: 622 S.W.2d 694)

also requested that Charlie's be allowed to keep the examination, he said: “We were accepting bids and
car in their showroom for promotional purposes un- with the five hundred dollar ($500) deposit it was
til after the Indianapolis 500 Race. The Sedmaks to give them the first opportunity to bid on the car.”
agreed to this arrangement. Then after acknowledging that other bidders had
not paid for the opportunity to bid, he explained the
On April 3, 1978, the Sedmaks were notified by deposit gave the Sedmaks the “last opportunity” to
Kells that the Pace Car had arrived. Kells told the make the final bid. Based on this evidence, the trial
Sedmaks they could not purchase the car for the court found the parties entered into an oral contract
manufacturer's retail price because demand for the for the purchase and sale of the Pace Car at the
car had inflated its value beyond the suggested manufacturer's suggested retail price.
price. Kells also told the Sedmaks they could bid on
the car. The Sedmaks did not submit a bid. They Charlie's first contends the Sedmaks' evidence is
filed this suit for specific performance. “so wrought with inconsistencies and contradictions
that a finding of an oral contract for the sale of a
Mr. Kells' testimony about his conversations with Pace Car at the manufacturer's suggested retail
the Sedmaks regarding the Pace Car differed price is clearly against the weight of the evidence.”
markedly from the Sedmaks' testimony. Kells stated We disagree. The trial court chose to believe the
that he had no definite price information on the Sedmaks' testimony over that of Mr. Kells and the
Pace Car until a day or two prior to its arrival at reasonableness of this belief was not vitiated by any
Charlie's. He denied ever discussing the purchase real contradictions in the Sedmaks' testimony.
price of the car with the Sedmaks. He admitted, Charlie's examples of conflict are either facially not
however, that after talking with the Sedmaks on contradictory or easily reconcilable.
January 9, 1978,[FN1] he telephoned the zone man-
ager and requested changes be made to the Pace Although not clearly stated in this point or expli-
Car. He *697 denied the changes were made pursu- citly articulated in its argument, Charlie's also ap-
ant to Dr. Sedmak's order. He claimed the changes pears to argue there was no contract because the
were made because they were “more favorable to parties did not agree to a price. The trial court con-
the automobile” and were changes Dr. Sedmak cluded “(t)he price was to be the suggested retail
“preferred.” In ordering the changes, Kells said he price of the automobile at the time of delivery.”
was merely taking Dr. Sedmak's advice because he Apparently, Charlie's argues that if this were the
was a “very knowledgeable man on the Corvette.” agreed to price, it is legally insufficient to support a
There is no dispute, however, that when the Pace contract because the manufacturer's suggested retail
Car arrived, it was equipped with the options re- price is not a mandatory, fixed and definite selling
quested by Dr. Sedmak. price but, rather, as the term implies, it is merely a
suggested price which does not accurately reflect
FN1. According to Kells' testimony, both the market and the actual selling price of automo-
Mr. and Mrs. Sedmak visited Charlie's on biles. Charlie's argument is misdirected and, thus,
January 9, 1978. Mrs. Sedmak testified misses the mark.
only she visited Charlie's on that date.
[3][4][5] Without again detailing the facts, there
Mr. Kells also denied the receipt for $500.00 given was evidence to support the trial court's conclusion
him by Mrs. Sedmak on January 9, 1978, was a re- that the parties agreed the selling price would be
ceipt for a deposit on the Pace Car. On direct exam- the price suggested by the manufacturer. Whether
ination, he said he “accepted a five hundred dollar this price accurately reflects the market demands on
($500) deposit from the Sedmaks to assure them the any given day is immaterial. The manufacturer's
first opportunity of purchasing the car.” On cross- suggested retail price is ascertainable and, thus, if

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the parties choose, sufficiently definite to meet the Guide To The Uniform Commercial Code (1964), s
price requirements of an enforceable contract. Fail- 1.1202 at 28. Thus, under this rule a buyer who or-
ure to specify the selling price in dollars and cents ally purchased one commercial unit for $10.00
did not render the contract void or voidable. See, e. could falsely assert he purchased 100 units and,
g., Klaber v. Lahar, 63 S.W.2d 103, 106-107 then, by also asserting a $10.00 payment was part
(Mo.1933); see also, s 400.2-305 RSMo 1978. As payment on the 100 units, he could, in theory and in
long as the parties agreed to a method by which the practice, convince the trier of fact that the contract
price was to be determined and as long as the price entered into was for 100 units. The Code attempts
could be ascertained at the time of performance, the to correct this defect by providing that part payment
price requirement for a valid and enforceable con- of an oral contract satisfies the Statute of Frauds
tract was satisfied. See Burger v. City of Spring- only “with respect to goods for which payment has
field, 323 S.W.2d 777, 783-84 (Mo.1959); see also, been made and accepted ....” s 400.2-201(3)(c)
Allied Disposal, Inc. v. Bob's Home Service, Inc., RSMo 1978. Under this provision, part payment
595 S.W.2d 417, 419-20 (Mo.App.1980) and s satisfies the Statute of Frauds, not for the entire
400.2-305 RSMo 1978. This point is without merit. contract, but only for that quantity of goods to
which part payment can be apportioned.[FN2] This
Charlie's next complains that if there were an oral change simply reflects the rationale that part pay-
contract, it is unenforceable under the Statute of ment alone does not establish the oral contract's
Frauds. The trial court concluded the contract was quantity term.
removed from the Statute of Frauds either by the
written memoranda concerning the transaction or FN2. s 400.2-201(3)(c) provides:
by partial payment made by the Sedmaks. We find
the latter ground a sufficient answer to defendant's “(3) A contract which does not satisfy
complaint. We discuss it and do not consider or ad- the requirements (of a writing) but which
dress the former ground. is valid in other respects is enforceable

*698 [6] Prior to our adoption of the Uniform Com- (c) with respect to goods for which pay-
mercial Code, part payment for goods was suffi- ment has been made and accepted or
cient to remove the entire contract from the Statute which have been received and accepted.“
of Frauds. s 432.020 RSMo 1949; Woodburn v.
Interpreting this section, U.C.C. Com-
Cogdal, 39 Mo. 222, 228 (1866); See Coffman v.
ment 2 states:
Fleming, 301 Mo. 313, 256 S.W. 731, 732-733
(1923). This result followed from the logical as- “ ‘Partial performance’ as a substitute
sumption that money normally moves from one for the required memorandum can valid-
party to another not as a gift but for a bargain. The ate the contract only for the goods which
basis of this rule is the probative value of the act- have been accepted or for which pay-
part payment shows the existence of an agreement. ment has been made and accepted. .... If
3 Sales & Bulk Transfers Under U.C.C., (Bender), s the Court can make a just apportionment,
2.04(5) at 2-96. However, “(t)his view overlooks ..., the agreed price of any goods actually
the fact that, although ... part payment of the price delivered can be recovered without a
does indicate the existence of an agreement, (it writing or, if the price has been paid, the
does) not reveal (the agreement's) quantity term, a seller can be forced to deliver an appor-
key provision without which the court cannot re- tionable part of the goods.”
construct the contract fairly and provide against
fraudulent claims.” 1 Hawkland, A Transactional In correcting one problem, however, the change

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creates another problem when, as in the instant ity dispute. Neither the language of the subsection
case, payment for a single unit sale has been less nor its logical dictates necessarily invalidate an oral
than full. Obviously, this part payment cannot be contract for an indivisible commercial unit where
apportioned and, thus, the question arises how shall part payment has been made and accepted. If there
this subsection of the Code be applied. The few is no dispute as to quantity, the part payment still
courts that have considered this question have used retains its probative value to prove the existence of
opposing logic and, thus, reached opposing an- the contract.
swers. At least one court reads and applies the
changed provision literally and denies the enforce- [8][9][10] Moreover, where, as here, there is no
ment of the oral contract because payment has not quantity dispute, part payment evidences the exist-
been received in full. Williamson v. Martz, 11 ence of a contract as satisfactorily as would a writ-
Pa.Dist. & Co.R.2d 33, 35 (1956). The Williamson ten memorandum of agreement under the liberal-
Court reasoned: ized criteria of the Code. The Code establishes only
three basic requirements for a written memorandum
“Under the code, part payment takes the case out to take an oral contract out of the Statute of Frauds.
of the statute only to the extent for which pay- “First, it must evidence a contract for the sale of
ment has been made. The code therefore makes goods; second it must be ‘signed,’ a word which in-
an important change by denying the enforcement cludes any authentication which identifies the party
of the contract where in the case of a single ob- to be charged; and third, it must specify a quantity.”
ject the payment made is less than the full s 400.2-201 RSMo 1978, U.C.C., Comment
amount.” Id. at 35. 1. Here, part payment evidences the contract for
the sale of goods-the car. The party to be charged-
Charlie's argues for this view. Other courts infer Charlie's-is identified as the one who received pay-
that part payment for one unit is still sufficient ment. The quantity is not in dispute because the
evidence that a contract existed between the parties Sedmaks are claiming to have purchased one unit-
and enforce the oral contract. Lockwood v. Smi- the car. Thus, part payment here evidences the ex-
gel, 18 Cal.App.3d 800, 96 Cal.Rptr. 289 (1971); istence of a contract as satisfactorily as would a
Starr v. Freeport Dodge, Inc., 54 Misc.2d 271, 282 written memorandum of agreement under the
N.Y.S.2d 58 (N.Y.Dist.1967); see also, Paloukos v. Code. Lockwood v. Smigel, 18 Cal.App.3d 800,
Intermountain Chevrolet Company, 99 Idaho 740, 96 Cal.Rptr. 289, 291 (1971); see also Paloukos v.
588 P.2d 939, 944 (1978); Bertram Yacht Sales, Intermountain Chevrolet Co., 99 Idaho 740, 588
Inc. v. West, 209 So.2d 677, 679 (Fla.App.1968); P.2d 939, 944 (1978).
Thomaier v. Hoffman Chevrolet, Inc., 64 A.D.2d
492, 410 N.Y.S.2d 645, 648-649 (1978). We are Finally, the Code has not changed the basic policy
persuaded by the cogency of the logic supporting of the Statute of Frauds.
this view.
“The purpose of the Statute of Frauds is to pre-
*699 [7] Admittedly, s 400.2-201(3)(c) does valid- vent the enforcement of alleged promises that
ate a divisible contract only for as much of the were never made; it is not, and never has been, to
goods as has been paid for. However, this subsec- justify the contractors in repudiating promises
tion was drafted to provide a method for enforcing that were in fact made.” Corbin, The Uniform
oral contracts where there is a quantity dispute. See Commercial Code; Should It Be Enacted? 59
Lockwood v. Smigel, supra, 18 Cal.App.3d 800, 96 Yale L.J. 821, 829 (1950).
Cal.Rptr. at 291; see also, 1 Hawkland, supra at 28.
The subsection does not necessarily resolve the Enforcement of the oral contract here carries out
Statute of Frauds problem where there is no quant- the purpose of the Statute of Frauds. Denial of the

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contract's existence frustrates that purpose. The er proper circumstances.” s 400.2-716(1) RSMo
present contract could not have contemplated less 1978. The general term “in other proper circum-
than one car. If the part payment is believed, it must stances” expresses the drafters' intent to “further a
have been intended to buy the entire car not a por- more liberal attitude than some courts have shown
tion of the car. Thus, denying the contract because in connection with the specific performance of con-
part payment cannot be apportioned encourages tracts of sale.” s 400.2-716, U.C.C., Comment 1.
fraud rather than discouraging it. “The Statute of This Comment was not directed to the courts of this
Frauds would be used to cut down the trusting buy- state, for long before the Code, we, in Missouri,
er rather than to protect the one who, having made took a practical approach in determining whether
his bargain, parted with a portion of the purchase specific performance would lie for the breach of
price as an earnest of his good faith.” Starr v. contract for the sale of goods and did not limit this
Freeport Dodge, Inc., supra, 54 Misc.2d 271, 282 relief only to the sale of “unique” goods. Boeving
N.Y.S.2d at 61. v. Vandover, 240 Mo.App. 117, 218 S.W.2d 175
(1945). In Boeving, plaintiff contracted to buy a car
[11] We hold, therefore, that where, as here, there from defendant. When the car arrived, defendant re-
is no dispute as to quantity, part payment for a fused to sell. The car was not unique in the tradi-
single indivisible commercial unit validates an oral tional legal sense but, at that time, all cars were dif-
contract under s 400.2-201(3)(c) RSMo 1978. ficult to obtain because of war-time shortages. The
court held specific performance was the proper
[12][13] Finally, Charlie's contends the Sedmaks
remedy for plaintiff because a new car “could not
failed to show they were entitled to specific per-
be obtained elsewhere except at considerable ex-
formance of the contract. We disagree. Although it
pense, trouble or loss, which cannot be estimated in
has been stated that the determination whether to
advance and under such circumstances (plaintiff)
order specific performance lies within the discre-
did not have an adequate remedy at law.” Id. at
tion of the trial court, Landau v. St. Louis Public
177-178. Thus, Boeving, presaged the broad and
Service Co., 273 S.W.2d 255, 259 (Mo.1954), this
liberalized language of s 400.2-716(1) and exempli-
discretion is, in fact, quite narrow. When the relev-
fies one of the “other proper circumstances” con-
ant equitable principles have been met and the con-
templated by this subsection for ordering specific
tract is fair and plain, “ ‘specific performance goes
performance. s 400.2-716, Missouri Code Comment
as a matter of right.’ ” Miller v. Coffeen, 280
1. The present facts track those in Boeving.
S.W.2d 100, 102 (Mo.1955). Here, the trial court
ordered specific performance because it concluded The Pace Car, like the car in Boeving, was not
the Sedmaks “have no adequate remedy at law for unique in the traditional legal sense. It was not an
the reason that they cannot go upon the open mar- heirloom or, arguably, not one of a kind. However,
ket and purchase an automobile of this kind with its “mileage, condition, ownership and appearance”
the same mileage, condition, ownership and appear- did make it difficult, if not impossible, to obtain its
ance as the automobile involved in *700 this case, replication without considerable expense, delay and
except, if at all, with considerable expense, trouble, inconvenience. Admittedly, 6,000 Pace Cars were
loss, great delay and inconvenience.” Contrary to produced by Chevrolet. However, as the record re-
defendant's complaint, this is a correct expression flects, this is limited production. In addition, only
of the relevant law and it is supported by the evid- one of these cars was available to each dealer, and
ence. only a limited number of these were equipped with
the specific options ordered by plaintiffs. Charlie's
Under the Code, the court may decree specific per-
had not received a car like the Pace Car in the pre-
formance as a buyer's remedy for breach of contract
vious two years. The sticker price for the car was
to sell goods “where the goods are unique or in oth-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 9
622 S.W.2d 694, 26 A.L.R.4th 284, 31 UCC Rep.Serv. 851
(Cite as: 622 S.W.2d 694)

$14,284.21. Yet Charlie's received offers from indi-


viduals in Hawaii and Florida to buy the Pace Car
for $24,000.00 and $28,000.00 respectively. As
sensibly inferred by the trial court, the location and
size of these offers demonstrated this limited edi-
tion was in short supply and great demand. We
agree, with the trial court. This case was a “proper
circumstance” for ordering specific performance.

Judgment affirmed.

SMITH, P.J., and WEIER, J., concur.


Mo.App. E.D. 1981.
Sedmak v. Charlie's Chevrolet, Inc.
622 S.W.2d 694, 26 A.L.R.4th 284, 31 UCC
Rep.Serv. 851

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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