Defendant Utah Bank Trust (hereafter defendant) appeals from a $14,839.31 judgment against it in an action for the wrongful repossession and commercially unreasonable sale of a 1972 Mack tractor. The defendant contends that there is an inconsistency in the special verdicts which requires remand or reversal of the judgment.
On November 11, 1971, Kenneth Allred executed a promissory note and security agreement in favor of defendant in consideration for a loan with which he purchased a Mack tractor. Approximately one year later Kenneth Allred leased the tractor to plaintiff for 36 months with the option to purchase it at the end of the lease period for $3,500.00.
Plaintiff made 26 payments directly to defendant, all of which were late. As of February 1975, plaintiff was two months behind in the payments. One of defendant's loan officers, Kotter, told plaintiff that the matter must be resolved by the end of February. On February 14, Kenneth Allred removed the tractor from a parking lot without plaintiff's knowledge. He later agreed to return the tractor to plaintiff on the condition that all future payments to defendant would be made in a timely manner. On February 25, defendant repossessed the tractor before Allred returned it to plaintiff.
Plaintiff contacted Kotter, who told him defendant would keep the tractor until the payments were made. On February 28, plaintiff offered to make the payments but Kotter told him that the vehicle had been sold. That sale occurred as follows: sometime between February 25th and plaintiff's offer on February 28th, the defendant received a check from Kenneth Allred's father, Arvel Allred, for $4,346.38, the balance owing on the promissory note; thereafter the defendant released its lien on the tractor, and turned it over to Kenneth Allred.
The case was submitted to the jury on 12 special interrogatories. Those pertinent to this appeal and underlined answers thereto are as follows:
Proposition No. 6: The disposition of the 1972 Mack Tractor on February 27th *Page 128 or 28th by the Utah Bank Trust Company was a commercially unreasonable disposition of the tractor. True.
Proposition No. 7: The Utah Bank Trust Company by its acts and conduct, through its employees and officers, waived payment of the three payments due on the promissory note until the end of business hours of the bank on February 28, 1975. True.
Proposition No. 8: The Fair Market Value of the Mack Tractor on the 25th of February, 1975, was in the sum of $20,500.00
Proposition No. 9: The defendant, Utah Bank Trust Company, wrongfully converted the 1972 Mack Tractor on February 25, 1975. False.
The District Court granted judgment against the defendant in the amount of $14,839.31, the amount of plaintiff's equity in the tractor, and a judgment of no cause of action in favor of the individual defendants, Arvel and Kenneth Allred.
Defendant contends on appeal that: 1) Interrogatory No. 7, a finding of a waiver of the late payments, and Interrogatory No. 9, a finding of no conversion of the tractor by the defendant are inconsistent and therefore should be disregarded and the case remanded for a new trial; or 2) Interrogatories Nos. 7 and 9 can be reconciled if the court holds that a finding of waiver of payments does not compel a conclusion that the defendant converted the tractor in which event the judgment against the defendant should be reversed.
The District Court instructed the jury that even if the defendant had a right to repossess the tractor, it had the further duty to sell the truck in a commercially reasonable sale.1 This instruction listed the requirements of a commercially reasonable sale as follows:
1) The defendant must have given notice of the sale "to all persons having any rights or interest in the truck" and 2) the defendant must have exercised "due diligence in attempting to get the best price obtainable for the truck" e.g. solicit bidders and advertise the sale.
The Court further instructed the jury that if it found that the lease option between Allred and plaintiff, noted ante, constituted a contract of sale then the plaintiff should be regarded as having rights and interest in the truck, which would entitle plaintiff to notice by defendant.
After being so instructed, the jury found that the defendant's disposition of the tractor was commercially unreasonable. This finding alone is a sufficient basis to sustain the judgment against the defendant,2 and other matters of alleged error need not be discussed.
Affirmed. Costs to plaintiff.
MAUGHAN and HALL, JJ., concur.