Commission agreement for a classic car: resale at the best possible price instead of a minimum price of CHF 65'000 not proven; 10 percent commission owed

Facts

The buyer ([A. AG] , appellant) and the seller ([B. GmbH] , respondent) concluded an oral purchase agreement in spring 2014 for a green Mercedes classic car at a price of CHF 65'000.--. After the seller refused to rescind the purchase, the buyer gave her a sales mandate (commission agreement). On 29 July 2014 the seller sold the vehicle to an interested party for CHF 50'000.--. By letter of 29 May 2015 she settled accounts: after deducting the outstanding purchase price of CHF 30'000.--, expenses of CHF 2'000.-- and a commission of CHF 5'000.--, she transferred a residual amount of CHF 13'000.-- to the buyer.

The dispute centred on whether the resale mandate provided for a minimum price of CHF 65'000.-- or for a sale at the best possible price. In addition, a white Mercedes was the subject of separate proceedings concerning alleged defects.

By claim of 15 December 2015, the buyer sought CHF 73'400.-- plus interest from the Uri Regional Court. The Regional Court upheld the claim by judgment of 25 August 2016. On the seller's appeal, the Uri Cantonal Court partially upheld the appeal by judgment of 24 January 2018 and ordered the seller to pay (acknowledged) CHF 10'000.-- plus interest with respect to the green Mercedes; as regards the white Mercedes, it remitted the matter to the Regional Court.

By judgment 4A_258/2018 of 14 November 2018, the Federal Supreme Court partially upheld the buyer's appeal and remitted the matter to the Cantonal Court for a new decision. The Cantonal Court had departed from the first-instance assessment of the agreed resale price without comprehensibly justifying this. By decision of 27 March 2019, the Cantonal Court ordered the seller to pay CHF 12'000.-- plus interest. It held that a minimum price of CHF 65'000.-- was not proven, that a sale at the best possible price of CHF 50'000.-- was to be assumed, and that a commission of 10 percent was owed.

By civil law appeal of 17 May 2019, the buyer asked the Federal Supreme Court to order the seller to pay CHF 32'000.-- plus interest and to lift the debt enforcement objection; in the alternative, to remit the matter to the Cantonal Court. The seller requested dismissal with costs. The Cantonal Court waived a response.

Considerations

The admissibility of the appeal arises despite the amount in dispute falling below CHF 30'000.-- (after acknowledgment of CHF 10'000.--, CHF 22'000.-- remained), because for appeals against partial decisions following remittal, the amount in dispute is determined by all claims contested before the lower court (Art. 51 para. 1 lit. b FSCA). The previous practice on appeals under Art. 66 para. 2 FJA, under which the amount in dispute is immaterial upon remittal, also applies to partial remittal.

The Federal Supreme Court is bound by its remittal decision and the legal assessment contained therein. It applies the law of its own motion, but in principle only examines the complaints raised. The establishment of facts may only be corrected in cases of manifest error (arbitrariness) or violation of law, and the strict complaint principle applies (Art. 105 para. 2, Art. 106 para. 2 FSCA).

On contract interpretation: the primary task is to establish the parties' actual, mutually shared intention (Art. 18 para. 1 CO), which constitutes an assessment of evidence and is reviewed only for arbitrariness. Only if an actual meeting of minds remains unproven does the objectified interpretation under the principle of good faith apply, which is freely reviewable as a question of law. The relevant time is the conclusion of the contract; subsequent conduct of the parties is irrelevant to interpretation under the principle of trust. The burden of proving the agreement of a minimum price rests on the buyer (Art. 8 CC).

The Cantonal Court's assessment of the evidence is not arbitrary: the email of 24 August 2014 was rightly disregarded, since it was written after the resale had already taken place and only proves the refusal to sell below CHF 65'000.--, but not a minimum price agreement. The email of 29 April 2014 at most proves the aim of minimising the loss. The parties' statements contradict each other, so they were not of decisive significance. The complaint of violation of the right to be heard (Art. 29 para. 2 Cst.) fails, because the Cantonal Court sufficiently justified its assessment of evidence and its interpretation under the principle of trust, and a substantive challenge was possible.

Under the principle of trust, the seller was entitled, on the basis of the email of 29 April 2014 (situation…