* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 765, n. 85, 86, 88, 91, 93; Motor Vehicles, 42CJ, p. 772, n. 45; p. 773, n. 46; Sales, 35Cyc, p. 712, n. 75, 79; On motion for directed verdict inferences most favorable to party against whom motion made must be drawn, see 26 R.C.L. 1068; 5 R.C.L. Supp. 1438; 6 R.C.L. Supp. 1581; As to election between action on contract for goods sold and action in replevin, see 9 R.C.L. 970; 2 R.C.L. Supp. 912. Appellant, G.G. Shade, brought an action of replevin in the circuit court of Monroe county against Diamond L. Service Station and the Armstrong Chevrolet Company, for the recovery of a new Chevrolet touring car. At the conclusion of the evidence, the court directed a verdict and judgment for the appellee, the Armstrong Chevrolet Company. From that judgment, the appellant prosecutes this appeal.
The Diamond L. Service Station was sued with the appellee, Armstrong Chevrolet Company, but appears to have no real interest in the controversy. The Armstrong Chevrolet Company will therefore be referred to in this opinion as the "appellee."
In determining the propriety of a directed verdict, every material fact which the evidence either proves or tends to prove must be taken as true in favor of the party *Page 162 against whom the verdict was directed. So viewing the evidence, the appellant made the following case:
He bought a new Chevrolet touring car from the appellee, for which he agreed to pay six hundred eighty-seven dollars and ninety-two cents as follows: Appellee accepted appellant's used Ford touring car at one hundred fifty dollars. The Chevrolet touring car was not to be delivered to the appellant until some time after the contract of purchase was made. At the time of delivery, the appellant agreed to pay cash sixty-one dollars and sixty-six cents, and the balance of the purchase price was to be divided into monthly installments of thirty-nine dollars and sixty-nine cents each. The understanding was that the new Chevrolet touring car was to be left by the appellee in the custody of the Diamond L. Service Station for delivery to the appellant on payment of the sixty-one dollars and sixty-six cents to the Diamond L. Service Station for the appellee. The agreement was embodied in a written contract between the appellant and the appellee, which contract provided, among other things, that the title to the new Chevrolet car should remain in appellee until paid for, and that, if the appellant failed to make any of the payments, the appellee should have the right, without notice, and without legal process, to take charge of the car as security for the unpaid purchase money.
In accordance with the agreement, the appellee turned over to the Diamond L. Service Station the new Chevrolet touring car for delivery to the appellant, upon payment, by the latter, of the cash installment of sixty-one dollars and sixty-six cents. Thereupon the appellant paid to the Diamond L. Service Station the sixty-one dollars and sixty-six cents, and undertook to drive the car away from the business place of the Diamond L. Service Station, and found it would not run because some of its parts were lacking. The appellant made an effort to get the appellee to replace these missing parts, but failed to do so; whereupon the appellant demanded *Page 163 of the Diamond L. Service Station a return of the cash installment of sixty-one dollars and sixty-six cents, which demand was complied with by said Diamond L. Service Station. The appellant left the car where he found it — in possession of the Diamond L. Service Station. Thereafter, the appellee, claiming the right, under its contract with the appellant, to enforce payment of the cash installment of sixty-one dollars and sixty-six cents, took possession of the car. The appellant then brought this action of replevin to recover the car from the appellee.
The evidence showed that the missing parts of the car could have been bought new for six dollars; that the car with the missing parts replaced was worth six hundred eleven dollars, and without the missing parts six hundred five dollars. The appellant's evidence tended to show that he refused to pay the cash installment because he thought he had the right to retain it as an offset to the damage done him by the appellee's breach of the contract in failing to deliver to him a new Chevrolet car in good running order. But neither before the action of replevin was brought by the appellant, nor afterwards, did the appellant claim that he was damaged in the sum of sixty-one dollars and sixty-six cents as a result of the breach of contract by the appellee. On the contrary, as stated, the evidence tended to show that the only damages suffered by the appellant was the amount necessary to purchase the missing parts of the car, to-wit, the sum of six dollars.
Appellee breached its contract in failing to deliver to the appellant a new Chevrolet car, in good running order; but did it follow therefrom that the appellant was entitled to possession of the car from the appellee under the undisputed facts of the case? We think not. By bringing of the replevin suit for the car, the appellant repudiated whatever right he had to rescind the contract under which the car was purchased. He therefore stood upon the contract, and sought to recover possession of the car thereunder. According to the provisions of the *Page 164 contract, he was not entitled to possession of the car until the cash payment of sixty-one dollars and sixty-six cents had been made. On account of appellee's breach of the contract, the appellant had the right to deduct from this cash payment of sixty-one dollars and sixty-six cents whatever damages he suffered on account of appellee's breach of the contract in failing to deliver him a car in good running order. Before bringing the replevin suit, the appellant was required to tender to the appellee the amount of the cash payment less the damages. This the appellant failed to do. On the other hand, if the appellee had been forced to bring replevin against the appellant for the possession of the car in order to enforce payment of the sixty-one dollars and sixty-six cents, the appellee would not have been entitled to recover without deducting from the sixty-one dollars and sixty-six cents whatever damages the appellant suffered on account of the breach of the contract by appellee in failing to furnish the appellant a car in good running order.
There was no substantial evidence tending to prove that the appellant was damaged in the sum of sixty-one dollars and sixty-six cents as the result of the contract by the appellee. We are therefore of the opinion that the court was justified in directing a verdict for the appellee.
Affirmed.