Abbett v. Thompson

• Decision Date: 20 November 1970
• Docket Number: No. 669A111,No. 2,669A111,2
• Citation: Abbett v. Thompson, 148 Ind.App. 25, 263 N.E.2d 733 (Ind. App. 1970)
• Parties: , 8 UCC Rep.Serv. 499 E. Thompson ABBETT, d/b/a E. T. Abbett & Associates, Appellants, v. Walter F. THOMPSON, Appellee
• Court: Indiana Appellate Court

Page 733

263 N.E.2d 733

148 Ind.App. 25, 8 UCC Rep.Serv. 499

E. Thompson ABBETT, d/b/a E. T. Abbett & Associates, Appellants, v.Walter F. THOMPSON, Appellee.

No. 669A111.

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1970.

Hughes & Hughes, Indianapolis, for appellants.

Harrison, Moberly, Wallace & Gaston, Indianapolis, for appellee.

HOFFMAN, Presiding Justice.

This appeal arises from a judgment entered by the trial court in favor of defendant-appellee in a suit brought by plaintiff-appellant to recover the unpaid balance on certain car wash equipment and services.

In March of 1967appellee signed two orders for car washing equipment.Appellee ordered a 3-Bay Cadillac Package and a 1-Bay Vibrapulse Automatic on one order form and various other accessories on the second order form.The entire system was to comprise a do-it-yourself auto washing center.

The car wash came in pieces and had to to be assembled.This was done and in July, 1967, the car wash went into operation.With the exception of the Vibrapulse Automatic washer, the car wash was still in operation in November, 1968, when the trial which led to this appeal was held.The automatic equipment had been replaced by a self-service 25-cent 'wand'--like the other three Bays.

Appellant's complaint, as amended by interlineation at the close of his evidence, was in three legal paragraphs.Paragraph I is based upon a written contract--the signed order for the 3-Bay Cadillac Package and the 1-Bay Vibrapulse Automatic totaling $32,617.90.Appellant alleged that appellee had paid only $16,500, and prayed for a judgment in the sum of $16,117.90, representing the balance due on such contract.

Paragraph II of the amended complaint is also based upon a written contract--the second order form signed by appellee.Appellant alleged that he had delivered a 'Combination Changer' and a 'Constant Flo System 4 Bay' and after appellee refused, in response to appellant's demand, to pay the contract price, appellant had not delivered the remaining items on the written contract.Appellant's prayer was in the amount of $3,373, plus interest, which included the value of the merchandise delivered and his loss of profits on the remaining items listed in the contract.

Paragraph III of appellant's amended complaint was based upon an open account for goods sold and delivered and labor and services furnished which totaled $2,661.61, plus interest.

Thereafter, appellee filed answer and counter-complaint for breach of warranties alleging the Vibrapulse Automatic did not conform to the promises and warranties made by appellant.Appellee alleged that appellant had failed to reclaim the equipment as appellee had requested and prayed for damages in the amount of $18,950--the contract price of the Vibrapulse Automatic.

At the close of the trial both parties submitted briefs and the trial court, without a jury, entered judgment as follows:

'WHEREFORE, IT IS THEREBY ORDERED, ADJUDGED AND DECREED that the Court finds in favor of the defendant on plaintiff's Amended Complaint herein, and the Court finds in favor of the plaintiff on defendant's Counter-Complaint herein, and the costs of this action are charged against the plaintiff.'

Only plaintiff-appellant has appealed, therefore, the judgment with regard to defendant-appellee's counterlclaim is not before this court.

Appellant's sole assignment of error is the overruling of his motion for a new trial.Aside from errors of law which appellant chose not to incorporate in his brief, appellant's motion for a new trial contained three grounds, which are as follows:

'1.Error in the assessment of the amount of recovery, in this, that, the amount is too small.

'2.The decision of the Court is not sustained by sufficient evidence.

'3.The decision of the Court is contrary to law.'

Appellant is appealing from a negative judgment, therefore, specifications of error numbered one and two present no question for our determination.Pokraka v. Lummus Co., 230 Ind. 523, 528--529, 104 N.E.2d 669(1952); Hinds,Executor, Etc. v. McNair, et al., 235 Ind. 34, 41, 129 N.E.2d 553(1956).

It is not disputed that Paragraphs I and II of appellant's amended complaint are based upon enforceable contracts.Neither is it disputed that the Uniform Commercial Code¹ governs the transactions.Appellant contends, and we agree, that each of the three paragraphs in his amended complaint constitute a separate claim for relief.

When appellant contends that the decision is contrary to law, we may consider only the evidence most favorable to appellee, together with any reasonable inferences which may be drawn therefrom; and it is only when there is no conflict in the evidence and it can lead to only one conclusion that being contrary to the one reached by the trial court, will the decision be reversed.A.S.C. Corporation v. First Nat. Bank, etc., 241 Ind. 19, 23, 167 N.E.2d 460(1960);Pokraka v. Lummus Co., supra;Quinn v. Peru Transit Lines, et al., 141 Ind.App. 111, 112--113, 226 N.E.2d 546(1967).

Paragraph I of the amended complaint was to recover the balance due on a contract dated March 17, 1967.The contract was for 'One 3 Bay Cadillac Package With New Roto-Thrust Pumps' and 'One 1 Bay Vibrapulse Automatic (above includes Building).'Both parties agree that appellee accepted these goods under the applicable provision of the Uniform Commercial Code.²Appellee, however, argues that his acceptance was properly revoked in accordance with Acts 1963, ch. 317, § 2--608, p. 539, Ind.Stat.Ann., § 19--2--608, Burns'1964 Repl., which, in pertinent part, reads as follows:

'Revocation of acceptance in whole or in part.

'(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its non-conformity would be cured and it has not been reasonably cured;

'(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects.It is not effective until the buyer notifies the seller of it.

'(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.'(Emphasis supplied.)

Appellant contends, without conceding that appellee fulfilled the other prerequisites to a valid revocation, that appellee did not attempt revocation of the 'commercial unit.''Commercial unit' as defined in Acts 1963, ch. 317, § 2--105, p. 539, Ind.Stat.Anno., § 19--2--105(6), Burns'1964 Repl., as follows:

'Definitions--Transferability--'Goods'--'Future' goods--'Lot'--'Commercial unit.'--

'(6)'Commercial unit' means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use.A commercial unit may be a single article(as a machine) or a set of articles(as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole.'(Emphasis supplied.)

On this point appellant makes alternative arguments.First, appellant argues that appellee's 4-Bay Car Wash is a 'Commercial Unit', and, second, he argues that at the very least the Vibrapulse Automatic was a 'Commercial Unit.'Appellee directs his argument solely to appellant's first contention and, at page 9 of his brief, states:

'Defendant, therefore, submits that the trial Court could reasonably conclude that the Vibrapulse was a 'commercial unit' and sufficiently independent of the manual car washes so that defendant could revoke his acceptance of the non-conforming Vibrapulse.'

Thus, the parties agree that the Vibrapulse was a 'commercial unit.'...