Agar v. Kysar
| Decision Date | 29 May 1981 |
| Docket Number | No. 5400,5400 |
| Citation | 628 P.2d 1350 |
| Parties | 31 UCC Rep.Serv. 911 Warren AGAR, d/b/a Vermeer Baler Sales, and Vermeer Manufacturing Company, Appellants (Defendants), v. Mary KYSAR, Personal Representative of the Estate of Joe Kysar, Deceased, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
James M. Guill and Richard W. Day of Goppert, Day & Olson, Cody, signed the briefs; and James W. Guill, Cody, appeared in oral argument on behalf of appellants (defendants).
Dick L. Kahl and Ross D. Copenhaver of Copenhaver & Kahl, Powell, signed the brief; Dick L. Kahl, Powell, appeared in oral argument on behalf of appellee (plaintiff).
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
The district judge in a breach of warranty action brought by appellee, buyer of a hay baler, held for appellee and gave judgment against appellants, sellers, for the entire purchase price, interest, cost of repairs, and court costs and directed return of the baler to appellants upon payment of the judgment. Presented to us in this appeal are three questions which we must answer. First, we must ascertain whether the theory of this case should properly be categorized as a breach of warranty or revocation of acceptance. Second, we must determine whether there was sufficient evidence to support the district court's conclusion that the baler delivered by appellant to appellee failed to perform as promised. Third, we must decide whether the district court used the proper measure to compute damages.
We will affirm the court's general holding for appellee but reverse as to relief awarded and remand for a reconsideration of damages.
In November or December of 1977, Joe Kysar (appellee) 1 contacted Warren Agar (appellant) about purchasing a baler to use on his farm. He stated that he needed one that could make a 3,000-pound bale. Agar, a sales representative for Vermeer Manufacturing Company (appellant), indicated that Vermeer had a baler known as the Vermeer Model 706C Baler which would produce bales weighing 3,000 pounds. Appellee thought it sounded good and agreed to buy for $8,125. However, no service contract was obtained.
After the baler was received on June 1, 1978, appellee turned it over to an employee, Jim Liner, to operate. It was used during the first and second cuttings in the summer of 1978. In the course of that summer, Liner noted numerous problems with the new baler:
But more importantly, the baler failed to produce a bale as large as the one that had been promised. Appellee testified that the bales which were produced averaged 1,400 pounds during the course of the summer cuttings.
After contacting Agar concerning the problems with the baler and failing to receive satisfaction, appellee called the factory. The engineers there suggested some new parts which they sent out. Appellee paid for these parts and then installed them, but the machine continued producing the same size bales. Nonetheless, appellee managed to struggle through the summer with the Vermeer baler.
On February 12, 1979, appellee commenced this action by filing a complaint against both Agar and Vermeer Manufacturing. In the complaint it was alleged that the defendants, by delivering a baler which failed to produce the 3,000-pound bales promised, breached the warranty implied by law under § 34-21-232, W.S.1977 (U.C.C. § 2-315). 2 As a result, appellee asked for the return of the purchase price, the cost of the replacement parts, as well as incidental and consequential damages.
A nonjury trial was held in the matter on July 8, 1980. At its close, the district court judge observed:
The court further ordered appellee upon receipt of the purchase price to return the baler to Vermeer. Accordingly, judgment was entered in favor of appellee on July 24, 1980 and later amended on September 2, 1980.
Frequently under the Uniform Commercial Code which Wyoming has adopted, the necessary proof as well as the appropriate remedy vary greatly depending upon the precise description of the claim. As a result, when cases arise under the Code, we must be concerned with what many view as mere technicalities. This is particularly true when reviewing issues concerning the sufficiency of the proof and the propriety of the measure of damages.
Of course, we must affirm on appeal if there exists any legally valid ground which appears in the record supporting the judgment. Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980). However, our job becomes complicated when we are presented with a judgment which fails to articulate clearly the reasoning behind it. This is particularly true where, as here, a complex statutory scheme is involved which entails many intricacies. Thus, in this case it is best to ascertain the appropriate legal theory in which the case should be viewed before considering the specific issues raised.
There are two competing rules to be considered. The first one was actually incorporated into the complaint. It arises from § 34-21-232, W.S.1977 (U.C.C. § 2-315), supra. It is commonly referred to as the implied warranty of fitness for a particular purpose. As applied to this case, it would impose liability upon the appellants if (1) they had reason to know that appellee had relied upon them to provide him with a baler which would produce 3,000-pound bales, and (2) they failed to furnish him with such a baler.
The second rule is found in § 34-21-271, W.S.1977 (U.C.C. § 2-608). 3 It is referred to as revocation of acceptance. Under it a buyer must establish that after accepting goods he either found a previously undiscoverable defect or nonconformity, or that the goods were accepted and retained on the assumption that the defect or nonconformity would be seasonably cured by the seller. The buyer then may within a reasonable time notify the seller of the revocation of his acceptance.
(Footnote omitted). White and Summers, Uniform Commercial Code § 8-3, p. 265 (1972).
The principal difference between proceeding under an implied warranty and a revocation of acceptance is that under the former the buyer retains the goods while under the latter the goods are returned to the seller. Therefore, the "(n)otice of revocation of acceptance need not be in any particular form or use particular words if the buyer has adequately informed the seller that he does not want the goods and does not wish to retain them." Boysen v. Antioch Sheet Metal, Inc., 16 Ill.App.3d 331, 306 N.E.2d 69, 71 (1974). See also Southeastern Steel Company, Inc. v. Burton Block and Concrete Company, Inc., 273 S.C. 634, 258 S.E.2d 888 (1979), where the court, after finding no cases contra, held that a notice of rejection must be in writing.
In this case there is no evidence that appellee ever notified Agar or Vermeer that he wanted to revoke his acceptance. It would appear that appellee merely complained about the problems he was having with the baler in an attempt to get the appellants to correct it. Then after receiving no assistance, he commenced this lawsuit. However, the complaint cannot constitute notice of revocation of acceptance because it alleged breach of warranty which under the Code implies appellee intended to retain the baler.
The conclusion follows that the district court could not have found for the appellee under a revocation of acceptance approach, § 34-21-271, W.S.1977 (U.C.C. § 2-608); thus, this case must viewed as an action arising under warranty.
Next, we must consider whether there was sufficient evidence to support the district court's conclusion that the appellants breached the implied warranty of fitness for a particular purpose. In particular, appellants contend that the appellee failed to demonstrate that the Vermeer baler did not perform as warranted.
However, when reviewing cases before us on appeal, we are compelled to accept the evidence of the prevailing party as true. Wallis v. Luman, Wyo., 625 P.2d 759 (1981). We will not disturb the trier of fact's findings unless the findings are so totally in conflict with the great weight of the evidence that they may be properly categorized as irrational. Palmeno v. Cashen, Wyo., 627 P.2d 163 (1981).
Here, we believe that under the doctrine of implied warranties there is sufficient evidence to justify upholding the district court's determination that the appellee had carried his burden of proof. All the evidence produced at trial indicates that when appellee...
To continue reading
Request your trial
-
Union Pacific Resources Co. v. State
...court, although the law is well established that we are permitted to affirm the district court on any proper ground. Agar v. Kysar, Wyo., 628 P.2d 1350 (1981); Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980), and cases therein cited. I cannot overlook the obvious ......
-
Harrington's Estate, Matter of, 5606
...by treating with it on the merits. We can, however, affirm the district court on any proper ground disclosed by the record. Agar v. Kysar, Wyo., 628 P.2d 1350 (1981); Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980); and cases therein cited. Because the probate cou......
-
Forbes v. Forbes
...job becomes complicated when we are presented with a judgment which fails to articulate clearly the reasoning behind it.” Agar v. Kysar, 628 P.2d 1350, 1352 (Wyo.1981) (internal citation omitted).A. The Unpled Claim1. Is the claim “unpled?” [¶ 38] The parties first dispute whether the claim......
-
Rocky Mountain Oil and Gas Ass'n v. State
...court, although the law is well established that we are permitted to affirm the district court on any proper ground. Agar v. Kysar, Wyo., 628 P.2d 1350 (1981); Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980), and cases therein cited. I cannot overlook the obvious ......