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Ark.App.,2013.
Bowen v. Gardner
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Gardner filed a complaint seeking recovery of the down payment and raising claims of unjust enrichment,
breach of contract, and statutory restitution pursuant to Arkansas Code Annotated section 4–2–718. B & C an-
swered, contending that it had an express agreement for the purchase of the shaving machine and that the terms in-
cluded the forfeiture of down payment.
Richard Cagle testified that the eight-foot machine ordered by Gardner was unusual in the industry and was a
special order. Cagle disputed Gardner's testimony concerning the down payment. He stated that he explained to
Gardner that if the machine was not purchased after it was built, Gardner would lose his money. Cagle also testified
that B & C was able to sell the machine after providing additional work to meet the new purchaser's specifications.
So as a matter of law, I'm finding that no contract exists and that a material term was omitted, namely whether or
not this down payment was refundable.
Because we do not have a contract, Plaintiff's Complaint, with respect to Counts 1[ FN1] and 3 fail and will be
Given the lack of a valid contract, the court went on to find that Gardner was entitled to recover on his theory of
unjust enrichment. The court appeared to credit Gardner's testimony that he had conversations with Cagle concern-
ing recovery of his down payment once the machine was sold. The court concluded that “the equitable thing here”
would be for B & C to return Gardner's down payment to him, less the money that B & C spent making modifica-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
erred in awarding damages to Gardner on a theory of unjust enrichment.
In bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or
clearly against the preponderance of the evidence. Benefit Bank v. Rogers, 2012 Ark. 419, ––– S.W.3d ––––;
McQuillan v. Mercedes–Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); Ark. R. Civ. P. 52(a) (2012). We
The circuit court found no valid contract existed because there was “insufficient evidence of a writing suffi-
cient to indicate that a contract for sale was made between the parties,” citing Arkansas Code Annotated section 4–
2–201(1) (Repl.2001). That statute provides as follows:
[1] We conclude that the court's ruling on this issue was partially correct. This was clearly a contract for the sale
of goods for more than $500. The only writing concerning the contract for sale is the “quote” that B & C faxed to
Gardner. The quote is signed by neither party. In that respect, then, the trial court correctly relied on the Uniform
Commercial Code.
[2] The essential elements of a contract include (1) competent parties, (2) subject matter, (3) legal consideration,
(4) mutual agreement, and (5) mutual obligations. DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 218, 289
S.W.3d 466, 470 (2008). We have determined that all of the basic elements of a contract exist. There are competent
parties, subject matter, consideration, agreement, and mutual obligation.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
must be a meeting of the minds as to all terms, using objective indicators. DaimlerChrysler Corp., 375 Ark. at 218–
19, 289 S.W.3d at 470; Grisanti v. Zanone, 2010 Ark. App. 545, 336 S.W.3d 886. Both parties must manifest assent
to the particular terms of the contract. DaimlerChrysler, 375 Ark. at 219, 289 S.W.3d at 470. Moreover, the terms of
a contract cannot be so vague as to be unenforceable. Id. The terms of a contract are reasonably certain if they pro-
vide a basis for determining the existence of a breach and for giving an appropriate remedy. Id.
cordingly, the circuit court erred in finding that no valid contract existed.
[5] Having determined that a contract existed, we must also conclude that Gardner breached that contract. That
is, he promised to purchase the shaving machine, and he did not do so. See, e.g., Quality Optical of Jonesboro, Inc.
v. Trusty Optical, L.L.C., 365 Ark. 106, 111, 225 S.W.3d 369, 373 (2006) (quoting Black's Law Dictionary 182 (7th
the breach is of the whole contract (§ 4–2–612), then also with respect to the whole undelivered balance, the ag-
grieved seller may:
....
in the event of the buyer's breach:
Under the conditions stated in § 4–2–703 on seller's remedies, the seller may resell the goods concerned or the
undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the
seller may recover the difference between the resale price and the contract price together with any incidental dam-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Gardner filed a complaint seeking recovery of the down payment and raising claims of unjust enrichment,
breach of contract, and statutory restitution pursuant to Arkansas Code Annotated section 4–2–718. B & C an-
swered, contending that it had an express agreement for the purchase of the shaving machine and that the terms in-
cluded the forfeiture of down payment.
Richard Cagle testified that the eight-foot machine ordered by Gardner was unusual in the industry and was a
special order. Cagle disputed Gardner's testimony concerning the down payment. He stated that he explained to
Gardner that if the machine was not purchased after it was built, Gardner would lose his money. Cagle also testified
that B & C was able to sell the machine after providing additional work to meet the new purchaser's specifications.
So as a matter of law, I'm finding that no contract exists and that a material term was omitted, namely whether or
not this down payment was refundable.
Because we do not have a contract, Plaintiff's Complaint, with respect to Counts 1[ FN1] and 3 fail and will be
Given the lack of a valid contract, the court went on to find that Gardner was entitled to recover on his theory of
unjust enrichment. The court appeared to credit Gardner's testimony that he had conversations with Cagle concern-
ing recovery of his down payment once the machine was sold. The court concluded that “the equitable thing here”
would be for B & C to return Gardner's down payment to him, less the money that B & C spent making modifica-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
erred in awarding damages to Gardner on a theory of unjust enrichment.
In bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or
clearly against the preponderance of the evidence. Benefit Bank v. Rogers, 2012 Ark. 419, ––– S.W.3d ––––;
McQuillan v. Mercedes–Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); Ark. R. Civ. P. 52(a) (2012). We
The circuit court found no valid contract existed because there was “insufficient evidence of a writing suffi-
cient to indicate that a contract for sale was made between the parties,” citing Arkansas Code Annotated section 4–
2–201(1) (Repl.2001). That statute provides as follows:
[1] We conclude that the court's ruling on this issue was partially correct. This was clearly a contract for the sale
of goods for more than $500. The only writing concerning the contract for sale is the “quote” that B & C faxed to
Gardner. The quote is signed by neither party. In that respect, then, the trial court correctly relied on the Uniform
Commercial Code.
[2] The essential elements of a contract include (1) competent parties, (2) subject matter, (3) legal consideration,
(4) mutual agreement, and (5) mutual obligations. DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 218, 289
S.W.3d 466, 470 (2008). We have determined that all of the basic elements of a contract exist. There are competent
parties, subject matter, consideration, agreement, and mutual obligation.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
must be a meeting of the minds as to all terms, using objective indicators. DaimlerChrysler Corp., 375 Ark. at 218–
19, 289 S.W.3d at 470; Grisanti v. Zanone, 2010 Ark. App. 545, 336 S.W.3d 886. Both parties must manifest assent
to the particular terms of the contract. DaimlerChrysler, 375 Ark. at 219, 289 S.W.3d at 470. Moreover, the terms of
a contract cannot be so vague as to be unenforceable. Id. The terms of a contract are reasonably certain if they pro-
vide a basis for determining the existence of a breach and for giving an appropriate remedy. Id.
cordingly, the circuit court erred in finding that no valid contract existed.
[5] Having determined that a contract existed, we must also conclude that Gardner breached that contract. That
is, he promised to purchase the shaving machine, and he did not do so. See, e.g., Quality Optical of Jonesboro, Inc.
v. Trusty Optical, L.L.C., 365 Ark. 106, 111, 225 S.W.3d 369, 373 (2006) (quoting Black's Law Dictionary 182 (7th
the breach is of the whole contract (§ 4–2–612), then also with respect to the whole undelivered balance, the ag-
grieved seller may:
....
in the event of the buyer's breach:
Under the conditions stated in § 4–2–703 on seller's remedies, the seller may resell the goods concerned or the
undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the
seller may recover the difference between the resale price and the contract price together with any incidental dam-
