Bergenstock v. Lemay's G. M. C., Inc.
| Decision Date | 14 April 1977 |
| Docket Number | No. 75-108-A,75-108-A |
| Citation | 118 R.I. 75,372 A.2d 69 |
| Parties | , 22 UCC Rep.Serv. 958 George BERGENSTOCK v. LEMAY'S G.M.C., INC. ppeal. |
| Court | Rhode Island Supreme Court |
This case was tried before a justice of the Superior Court and a jury. The jury returned a verdict in the plaintiff's favor in the amount of $12,100.85, whereupon the trial justice directed a verdict in favor of the defendant. The case is before us on the plaintiff's appeal from the judgment entered on the directed verdict, the defendant having waived its cross-appeal during oral argument before this court.
In March of 1970, plaintiff retired from the United States Navy after nearly 20 years of service. While in the Navy, he had been involved in operating and maintaining heavy equipment and had taught these skills to younger Navy personnel. After his discharge, plaintiff had trouble finding steady employment to help him feed and support his wife and five young children so, in late 1970, he struck upon the idea of utilizing his heavy equipment skills to go into business for himself as a trucking subcontractor. After making inquiries about purchasing a truck tractor, plaintiff was referred to Subler Transfer, Inc. (Subler) of Versailles, Ohio. The plaintiff thereupon filed an application for employment with Subler and the latter responded that plaintiff's acceptance into Subler's employ was contingent upon his meeting the requirements of the United States Department of Transportation and the Interstate Commerce Commission and his obtaining a truck tractor which met certain specifications. Among those specifications was that the truck could be no older than 1968 vintage, that is, 3 years old or newer. In late March 1971, with the advice of a representative of the Service Corps of Retired Executives (SCORE) and with a secured loan from the Small Business Administration (SBA), plaintiff negotiated the purchase from defendant of a truck which was represented by the latter to have been manufactured in 1967 or 1968. The amount of the loan from SBA was $18,000, of which $12,100.85 was applied to the purchase of the truck. The truck was registered on April 1, 1971, and on April 2 or 3, plaintiff drove the truck to Versailles, Ohio, so that it could be inspected by Subler and so that he could attend a 3-day instruction program.
After plaintiff corrected several minor defects that had been detected during Subler's inspection, the truck tractor was approved and the employment contract was executed. The plaintiff almost immediately commenced hauling freight for Subler but it was not long before he began experiencing a series of mechanical failures with the truck tractor. In mid-April a fan hub became dislodged and the fan flew through the truck's radiator. During a single week in early May, the truck's generator-starter and clutch required repairs which were performed by defendant's mechanics. All of the repairs to this time had cost plaintiff an estimated $800. After several trips to the Chicago area, the truck suffered a loss of braking power to the trailer in mid-June, whereupon plaintiff returned to Rhode Island and informed the SBA, who held a security interest in the truck, that he no longer wanted the truck because it cost him 'too much money to keep it going.' He was instructed to deliver the truck to a local auctioneer who was to conduct a forced liquidation auction of the truck on behalf of the SBA. On July 10, 1971, the truck was sold at auction for $5,600, from which the SBA grossed $4,905, and thus there remained a balance due on the loan to plaintiff of $10,603.48.
Sometime prior to this date, plaintiff became aware that the truck had been manufactured in 1966 and not in 1968 as he had previously believed. Upon making this discovery, plaintiff obtained legal counsel and tendered notice to defendant that he was returning the truck tractor and demanding the return of the purchase price and other costs. No amicable settlement of the dispute could be agreed upon and the truck was disposed of at the auction described above.
On August 25, 1971, plaintiff filed a complaint which alleged in three counts (1) that plaintiff had effectively revoked his acceptance of the truck and was entitled to return of the purchase price, (2) that, in representing the truck to be a 1968 model, when in fact it was a 1966, defendant had made and breached an express warranty, and (3) that defendant had been unjustly enriched. In each of the first two counts, plaintiff demanded actual damages of $12,100 and consequential damages in the amount of $10,000. In the third count, he demanded $12,100. The case was tried before a justice of the Superior Court sitting with a jury in December of 1974. At the close of all the evidence, defendant's counsel moved for directed verdicts on all three counts. Ruling that plaintiff had failed to present any probative evidence as to the difference in value between a 1968 truck and a 1966 truck and that because the measure of damages under G.L.1956 (1969 Reenactment) § 6A-2-714(2) is 'the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted,' the trial justice directed a verdict in defendant's favor on that count of the complaint which sounded in breach of express warranty. He also ruled that, for the same reasons, that is, that there was no probative evidence of damages, defendant was entitled to a directed verdict on the charge of unjust enrichment as well. The trial justice, invoking the terms of Super.R.Civ.P. 50(b), reserved decision on the motion as it applied to the count of the complaint alleging revocation of acceptance.
The case was submitted to the jury solely on the theory of revocation of acceptance under § 6A-2-608 and a verdict was returned in plaintiff's favor in the amount of $12,100.85. At that point, the trial justice entertained arguments from counsel on the reserved motion after which he decided to direct a verdict in favor of defendant on that count as well. The case is now before us on plaintiff's appeal from the judgments entered on the directed verdicts as to the claims that defendant breached an express warranty and that plaintiff revoked his acceptance of the truck.
It should be noted at the outset that plaintiff's arguments on appeal that defendant breached implied warranties of merchantability, § 6A-2-314, or fitness for a particular purpose, § 6A-2-315, are not well-taken. It is clear from the record that not only was neither of these theories of recovery pleaded but that neither was the object of plaintiff's proof at trial. Since plaintiff failed to properly raise these theories at the trial level of this proceeding, we will not consider them on appeal.
We turn now to plaintiff's argument that he had effectively revoked his acceptance of the truck tractor and was thereby entitled to a return of the purchase price.
The conditions under which a buyer may revoke his acceptance of goods are set forth with some specificity in § 6A-2-608. That section of the Uniform Commercial Code is set forth in full in the margin, 1 but insofar as it applies to this case we need only note here that plaintiff's acceptance of this truck may be revoked only if the truck suffers from a nonconformity which 'substantially impairs its value to him.' Section 6A-2-608(1). Since the trial justice directed the verdict on this count of the complaint solely on the ground that plaintiff had failed to establish the existence of this degree of nonconformity, we presume that all other requisites of § 6A-2-608 have been satisfied.
The plaintiff argues, in essence, that the nonconformity of the truck sold to him by defendant lies in the fact that it was a 1966 vintage truck and not a 1968. He argues further that, because § 6A-2-608 requires a showing of substantial impairment of value to the buyer, the seriousness of the nonconformity is to be measured in each case against a particular buyer's particular needs. The plaintiff concludes that, because he has shown that defendant was aware of Subler's requirement that plaintiff obtain a 1968 or newer truck, the fact that this truck was a 1966 was such a nonconformity as would substantially impair the truck's value to him. It is his position therefore that there was sufficient evidence in the record to support the jury's conclusion that the difference in model years constituted grounds for a valid revocation of acceptance and therefore that the trial justice erred in directing a verdict to the contrary.
In considering this claim, we note initially that whether a particular nonconformity substantially impairs the value of a contract to the buyer is a factual consideration and thus is properly left for the jury. Whaley, Tender, Acceptance, Rejection and Revocation-the UCC's 'TARR'-Baby, 24 Drake L.Rev. 52, 75 (1974); Hays Merchandise, Inc. v. Dewey, 78 Wash.2d 343, 347 474 P.2d 270, 272 (1970) (citing Campbell v. Pollack, 101 R.I. 223, 221 A.2d 615 (1966)). It also seems a sound proposition that in determining the existence of a substantial nonconformity, the trier of fact should reach its conclusion as an objective factual determination of a particular buyer's particular needs. Hays Merchandise, Inc. v. Dewey,supra, 78 Wash.2d at 347, 474 P.2d at 272. See White & Summers, Handbook of the Law under the Uniform Commercial Code at 260 (1972). Although it has been held that this standard imports more than a buyer's right to conformity of quantity and quality, Campbell v. Pollack, supra, 101 R.I. at 230-31, 221 A.2d at 619, and that impairment of value may be substantial though the cost of curing the defect may be minimal, Jorgensen v. Pressnall, 274 Or. 285, 290, 291, 545 P.2d 1382, 1385 (1976), it has also been held that every minor breach of warranty does...
To continue reading
Request your trial
-
In re Gen. Motors LLC
...as warranted" (citing N.M. Stat. Ann. § 55-2-714 ) ). • Rhode Island: R.I. Gen. Laws § 6A-2-725 ; see alsoBergenstock v. Lemay's G. M. C., Inc. , 118 R.I. 75, 87, 372 A.2d 69 (1977) (noting that R.I. Gen. Laws § 6A-2-714 measures damages for breach of warranty as "the difference at the time......
-
Mayberry v. Volkswagen of America, Inc., 03-1621.
...e.g., HCI Chems. (USA), Inc. v. Henkel KGaA, 966 F.2d 1018, 1024 (5th Cir. 1992); Cohen, 264 F.Supp.2d at 622; Bergenstock v. Lemay's G.M.C., Inc., 372 A.2d 69, 75 (R.I. 1977); ITT-Indus. Credit Co. v. Milo Concrete Co., 229 S.E.2d 814, 822 (N.C. Ct. App. 1976); James J. White & Robert S. S......
-
Freedman v. Chrysler Corp.
...Conn. 342, 525 A.2d 57, 60 (1987); Keen v. Modern Trailer Sales, Inc., 40 Colo.App. 527, 578 P.2d 668 (1978); Bergenstock v. Lemay's G.M.C., Inc., 118 R.I. 75, 372 A.2d 69 (1977). As to this second objective standard, one court has observed "[t]he second inquiry is whether the nonconformity......
-
Volpe v. Fleet Nat. Bank
...on appeal in order to obtain a reversal of the lower court's determination. Ludwig, 419 A.2d at 302; Bergenstock v. Lemay's G.M.C., Inc., 118 R.I. 75, 81, 372 A.2d 69, 72 (1977). Since the only claim presented to the motion justice was an action in negligence, our review of the summary-judg......