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TB OF BLYTHEVILLE v. LITTLE ROCK SIGN & EMBLEM6/2/1997
rt's failure to award pre- and postjudgment interest. And lastly, Taco Bell appeals the denial of its motion for a new trial because the jury's verdict was against the undisputed evidence.
I. Voluntary Payment Rule
The trial court ruled that Taco Bell was barred from recovery for the amount paid for the second sign because of the common-law voluntary-payment rule. Appellant requests that we find that the voluntary-payment rule has been displaced by the enactment of the Uniform Commercial Code and is not controlling in instances involving the sale of goods.
In Boswell v. Gillett, 226 Ark. 935, 940, 295 S.W.2d 758, (1956), we applied the common-law voluntary-payment rule and noted, "When one pays money on demand that is not legally enforceable, the payment is deemed voluntary. Absent fraud,
duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered." According to the UCC, common-law principles of law and equity are given full effect unless displaced by particular provisions of the UCC. Ark. Code Ann. ยง 4-1-103 (1991)(emphasis supplied). While the UCC has given buyers and sellers specific remedies for breach of sales contracts and the warranties therein, we find no support for the contention that the common-law voluntary-payment rule is inconsistent with the application of the UCC; therefore, the voluntary-payment rule has not been displaced by the enactment of the UCC.
Despite the fact that the voluntary-payment rule can apply in situations involving a sale of goods, it is not applicable to the facts of this case. It is obvious that the UCC applies to the contract for the sale of the first sign; likewise, the sale of the second sign also was a transaction governed by the UCC. As the trial court found, the purchase of the second sign was an independent transaction and a second contract between Little Rock Sign and Taco Bell. The contract for the second sign was evidenced by the invoice that required Taco Bell to pay $25,086.85 for the "new unit." In testimony at trial, the second sign was referred to as a "new" unit.
Appellee contends that the sale of the second sign was merely a repair of the first faulty sign that is not governed by the UCC. The UCC applies to original goods; therefore, if the second sign is a repair, then the UCC does not apply. We do not think that the purchase of the second sign was a "repair."
The definition of "repair" from Black's Law Dictionary is "to mend, remedy, restore, renovate, to restore to a sound or good state after decay, injury , dilapidation, or partial destruction." It is our interpretation that the word repair "contemplates an existing structure . . . which has become imperfect and means . . . to restore the existing structure to a condition in which it originally existed, or as near as can be attained." BLACK'S LAW DICTIONARY 1298 (6th ed. 1990), citing, Childers v. Speer, 63 Ga. App. 848, 12 S.E.2d 439, 440 (1940). See also, Kuras v. Kope, 533 A.2d 1202, 1209 (Conn. 1987); Wroblewski v. Grand Trunk W. Ry. Co., 276 N.E.2d 567, 574 (Ind. 1971).
When the first sign fell, it was completely destroyed; only a small portion of the post remained. There was no possible way to repair that sign. At that time, Taco Bell had the option to pursue an action for damages based upon the insufficiency of that sign. In fact, during this time both parties' insurance carriers became involved and were trying to determine fault. At the moment the sign fell, Taco Bell was faced with the possibility of lost profits due to the fact that there was no sign to advertise its presence in that location. Despite the possibility of pursuing an action regarding the first sign, Taco Bell
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