Berg v. Stromme

• Decision Date: 22 April 1971
• Docket Number: No. 41500,41500
• Citation: 484 P.2d 380,79 Wn.2d 184
• Parties: , 8 UCC Rep.Serv. 1185 Richard BERG, Petitioner, v. Arthur STROMME and Charlotte Stromme, his wife, d/b/a Stromme Motors, Respondents.
• Court: Washington Supreme Court

Page 184

79 Wn.2d 184

484 P.2d 380, 8 UCC Rep.Serv. 1185

Richard BERG, Petitioner, v. Arthur STROMME and Charlotte Stromme, his wife, d/b/a Stromme Motors, Respondents.

No. 41500.

Supreme Court of Washington, En Banc.

April 22, 1971.

Rehearing Denied June 4, 1971.

Horton, Wilkins & Horton, Hugh B. Horton, Kennewick, for petitioner.

Peterson, Taylor & Day, Stanley D. Taylor, Pasco, for respondents.

HALE, Associate Justice.

Plaintiff bought a new Pontiac station wagon automobile but claimed that it had so many things wrong with it he felt justified in rescinding the deal. When he tried to return the car and get a refund, the dealer refused, saying not only that the sale carried no warranty of quality but that plaintiff had in writting waived all warranties of fitness, express or implied, and had acknowledged that he was buying without any guarantee whatever.

Seeking damages for depreciated value, costs of repairs and time loss, plaintiff brought this action against the dealer who had sold him the automobile. At the close of plaintiff's case, the superior court on defendant's motion ordered a dismissal with prejudice. The order of dismissal specified two grounds: (1) that the article had been purchased by trade name and that the sale was, therefore, without warranty of fitness; and (2) that plaintiff had signed a disclaimer of warranty. ¹

The court of appeals affirmed, with one judge dissenting. Berg. v. Stromme, 1 Wash.App. 916, 465 P.2d 181 (1970). We granted review (Laudermilk v. Carpenter, 78 Wash.Dec.2d 91, 469 P.2d 547 (1970)), and reverse the court of appeals and the superior court.

Defendants owned and operated the Pontiac-Cadillac dealership in Pasco under the name of Stromme Motors. Plaintiff, a practicing physician and psychiatrist, discussed with them in 1964 the purchase of a new 1965 model Potiac Safari station wagon. Equipped with the large engine and numerous items of extra equipment, the car was intended by the parties to have adequate size, weight and power for towing a fully loaded 3-horse trailer. The parties were not business strangers for Dr. Berg had once bought a 3-horse trailer and on prior occasions had purchased automobiles from the Stromme dealership.

As the court of appeals states, the record shows that, before making the purchase, plaintiff had informed defendant of his particular needs and the uses to which he would put the new car, and that defendant recommended he buy the Safari with the large engine and numerous items of optional equipment on it. So equipped and accoutred, this particular new car, they asserted, would satisfactorily meet the doctor's general requirements for family use and in the practice of his profession, and would fulfill his needs as a horse breeder in transporting his horses by trailer.

Evidence of conversations with and reppresentations by the dealer as to the particular capabilities of the new car, howver, while admissible, do not in this instance determine defendant's liability for the buyer did not rely on the seller's judgment in buying this particular car. Generally, if a buyer communicates to the seller his particular needs and the purposes and uses to which the article will be put and relies upon the seller's judgment and representations that the article will fulfill these needs and meet the buyer's particular requirements and will perform the work and uses for which it is being bought, the law recognizes an implied warranty that the article will meet the described standards. But proof of such representations is not essential to plaintiff's recovery in the present case for even though the conversations and representations were material and relevant to prove the contract of purchase, they do not, as we view the matter, govern or control the rights and duties of the parties. The issue, as we see it, is whether the buyer, despite the printed disclaimer of warranty, was entitled under the circumstances and conditions of the purchase, to receive delivery from the dealer of a new automobile that would operate with reasonable efficiency, safety and comfort. Evidence of the seller's representations were relevant to this issue, however, because it shows that the purchase resulted from negotiations, item by item, as to the color, size, weight, horsepower and body style of the vehicle and the kinds of optional extra equipment to be put on it, such as power brakes, power steering, tilt-steering wheel, soft-ray glass, power-operated rear window, power seat, air conditioning, superlift shock absorbers--and a host of other items of extra equipment not included in the standard price of the car of that size, type and model.

The printed documents constituting the written agreement between the parties and the execution of them in writing will show, we think, why printed disclaimers of warranty in the purchase of new automobiles are now regarded with increasing disfavor by the courts. Norway v. Root, 58 Wash.2d 96, 361 P.2d 162 (1961). Although competent parties may make any lawful contract they choose, there exists a strong presumption that the buyer, in negotiating the purchase of a brand new car from a dealer, after discussing and agreeing upon all of the details as to its style, type, price, equipment, accessories and condition of delivery, would not in the same agreement negate and undo his bargain by disclaiming the right to a car of merchantable quality. ² Merchantable quality in a new car means a car that is reasonably safe, trouble free and dependable (Appleman v. Fabert Motors, Inc., 30 IllApp.2d 424, 174 N.E.2d 892 (1961); Fillet v. Curry, 12 A.D.2d 519, 207 N.Y.S.2d 522 (1960)); and that it is reasonably suited for the purpose for which it was manufactured. Paton v. Buick Motor Divisions, General Motors Corp., 401 S.W.2d 446 (Mo.1966).

Nothing in the purchase order form other than the printed disclaimer indicates that the purchaser here intended to bargain away or waive his right to a serviceable automobile. The price of the car, without optional equipment, as written in ink on the purchase order form, was $3,632. Nearly 40 separately listed items--handwritten in pen and ink on the same order form--described and priced the items of extra optional equipment to be added to the car, these running from a vanity mirror at $1.45 to air conditioning at $430.40, with such inbetween devices as power brakes, $43; wind deflector, $26.90; power seat, $96.84; tilt steering, $43.04. . optional items brought the total cash price to $6,048.14. Thus, the extra equipment, specifically ordered, item by item, with the price of each set opposite each, all in handwriting, nearly equaled the cost of the vehicle alone.

Although the trial court reached a different conclusion, the purchaser here did not, we think, buy 'a specified article under its patent or other trade name' as contemplated either by the Uniform Sales Act (RCW 63.04.160(4)), ³ Washington case law (Long v. Five-Hundred Co., 123 Wash. 347, 212 P. 559 (1923)), or the general law of this country. 1 S. Williston, Sales § 236a (1948 ed., 1970 supp.). Nor, as earlier noted, does the record disclose reliance by Berg upon the seller's assurances or representations that the automobile was adapted to the conditions described and would perform the work for which defendant intended to use it. Webster v. L. Romano Engineering Corp., 178 Wash. 118, 34 P.2d 428 (1934). It shows rather, aside from the seller's representations and suggestion that the station wagon would effectively and successfully tow a 3-horse trailer for long distances, that this brand new Pontiac station wagon was sold on the implied warranty that it would with reasonable efficiency, safety and comfort perform all of the functions and render all of the service that a reasonably minded purchaser of a brand new car had a right to expect of it. Accordingly, we are of the view that the trial court was in error in concluding that this sale fell within that provision of the Uniform Sales Act (RCW 63.04.160) which states that there is no warranty of fitness in the sale of a specified article under its patent or other trade name. We note that the court of appeals did not compound this error for it affirmed the judgment solely on the basis of a written waiver of warranty. Berg v. Stromme, 1 Wash.App. 916, 465 P.2d 181 (1970).

The order of dismissal was entered after the court had received substantial proof that this brand new car was not reasonably fit for the purpose for which it was sold--I.e., a serviceable automobile capable of transporting a driver and passengers with reasonable efficiency, comfort and security upon the roads and highways of the state. There was proof of serious trouble in the car shortly after its delivery in February, 1965. The motor ran roughly and unevenly, and it clattered; the car steered inaccurately and would veer at times; it overheated under normal driving conditions; the turn signals were defective; and the car accelerated unevenly and did what is called 'surging.' Its air shock absorbers were defective, and the brakes failed after only 4 months' normal use. The shift lever did not work properly, and for no apparent reason the car stalled several times in traffic. The shift indicator showed the car at times to be in neutral when it was actually in drive. The windows needed fixing, and the heater did not work properly.

A safety engineer testified that the car was dangerous to drive either during daylight or darkness. Additionally, there were minor defects such as scratches on the paint and loosely secured chrome and molding. Plaintiff returned the car to defendant periodically for repairs, and it spent 20 days during the first 4 months after delivery--a total of 45 days before the first year of ownership had expired--in defendant's repair shop.

The trial court and the court of appeals based their decisions on the written statement above the plaintiff's signature on the purchase order and conditional sale...