Appeal from Circuit Court, Josephine County. Samuel M. Bowe, Judge. Argued and submitted February 6, 1973.
Raymond J. Salisbury, Grants Pass, argued the cause for appellant. On the briefs were Schultz, Salisbury & Cauble, Grants Pass.
William H. Ferguson, Medford, argued the cause for respondents. With him on the brief were Grant and Ferguson, Medford.
Tongue, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Howell and Bryson, Justices.
This is an action on a promissory note to collect an alleged balance of $1,543.71, in which defendants filed a counterclaim to recover the amount of an alleged overpayment of $3,706.56. The note was secured by a chattel mortgage on certain trucks and trailers which were later repossessed and sold by plaintiff.
Defendants' counterclaim alleged that plaintiff repossessed one of the trucks and trailers on January 11, 1966, but did not sell them until "on or about January of 1969"; that "by reason of said repossession and sale the Plaintiff did not act as required by the terms of the Uniform Commercial Code" (ORS 79.5040 and 79.5070), and that "after allowance of all proper credits and charges, the Plaintiff has been overpaid by the Defendants in the sum of $3,706.56."
The case was tried before a jury. Plaintiff appeals from a verdict and judgment in favor of defendants on their counterclaim in the sum of $899.83. We affirm.
The facts are not complicated. On January 15, 1965, defendants executed a promissory note to a bank for $12,979.44, secured by a chattel mortgage on a 1957 Chevrolet pickup truck, a 1954 Autocar truck and two trailers. Defendants became delinquent in their payments. Plaintiff had guaranteed payment of the note. On January 11, 1966, upon payment by plaintiff of the balance then due, the bank endorsed the note to plaintiff without recourse and also assigned to him
the chattel mortgage. At that time the balance payable by defendants to plaintiff was the sum of $11,181.74.
In January, 1966, plaintiff made an agreement under which defendants gave him a separate contract to pay $600 for the pickup truck and then repossessed the Autocar truck and the two trailers. By letter dated January 26, 1966, plaintiff informed defendants of his intention to sell this equipment on private sale on or after February 10, 1966. He testified that defendants promised to produce a buyer, but did not do so.
Plaintiff claimed to have advertised the equipment for sale in various publications, along with other equipment which he had for sale. Because plaintiff was unable to produce copies of such advertisements at the time of trial, the exact nature and extent of such advertising, as well as the prices for which the equipment was advertised, do not appear. In August, 1966, however, plaintiff sold one trailer for $2,750.
By letter dated October 15, 1966, plaintiff sent defendants another letter stating his intention to sell the remaining equipment at auction. As of that date the balance on the account was $8,162.34. He did not sell the equipment, however, until two years later, on October 14, 1968, when he sold the truck and the remaining trailer for $9,700. Meanwhile, plaintiff also sold a pump for $142.50 and rented some of the equipment for $195, making a total of $13,387.50 received by him as a result of the repossession (including the $600 contract for resale of the pickup truck to defendants).
During that period, however, charges for interest, repairs and other items continued to accrue, resulting in a balance as of October 14, 1968, in the sum
of $11,243.71 prior to the sale of that truck and trailer and a remaining balance in the sum of $1,543.71 after that sale.
Defendants testified that after receiving plaintiff's letter of October 14, 1966, they heard nothing further from plaintiff for over two years and had assumed that the equipment had been sold. Defendant M. A. Huddleston expressed the opinion that in 1966 the truck and trailer was worth $10,000. Defendants also called as a witness a truck dealer who testified the normal practice on the repossession of such equipment was usually to resell it in from 30 to 60 days; that to his recollection plaintiff contacted him about the sale of the truck and trailer and was "asking" $14,000 for them, and that on that basis the truck and trailer was overpriced for a quick sale.
Plaintiff denied that he asked such a price. He also called as a witness a truck dealer who testified that the age and nature of the truck and trailer made them difficult to sell; that their retail value was $7,500; that the price of $9,700 was "very high"; that such equipment should be sold "within a two year period at the most" and that the average period for the resale of used trucks was six months as a "feasible average" for "usual commercial practice," with "half over and half under." He also testified that it would have been hard to sell the truck and trailer for $14,000.
Plaintiff's total experience in repossessions and sales of repossessed equipment was limited to two other repossessions.
The Uniform Commercial Code, as adopted in Oregon, includes the ...