Bowen v. Young
| Decision Date | 06 February 1974 |
| Docket Number | No. 6347,6347 |
| Citation | 507 S.W.2d 600,14 UCCRep.Serv. 403,67 A.L.R.3d 354 |
| Parties | , 14 UCC Rep.Serv. 403 Orris W. BOWEN, d/b/a Bowen Mobile Homes, Appellant, v. Jack YOUNG, Appellee. |
| Court | Texas Court of Appeals |
John H. Whitaker, El Paso, for appellant.
Texas S. Ward, El Paso, for appellee.
This case involves the right of a purchaser of a mobile home to rescind the sale, the question of a subsequent acceptance, and the damages of the respective parties resulting from their conduct. In a trial to the Court without a jury, the trial Court found that the buyer, Appellee herein, rightfully rejected the mobile home delivered to him because it did not conform to the sales contract, awarded Appellee $2,000.00 in damages, which was found to be a security interest in the mobile home, and subject to payment of such amount, Appellee was ordered to deliver possession of the mobile home to Appellant, the seller. The case is reversed and remanded for a new trial.
The evidence reflects that on November 14, 1970, the Appellee, who was preparing to move from El Paso to South Carolina to work on a new job, went to see Appellant who sold mobile homes in El Paso, concerning the purchase of a new mobile home and delivery of the unit to him in South Carolina. After seeing several display models, Appellee decided to purchase a Sherwood, two-bedroom, 12 65 mobile home. He paid $1,000.00 to Mr. Bowen and signed a sales contract which called for delivery on November 30, 1970. Mr. Young testified that he ordered a gas heating furnace, and although such was not described on the sales contract, the form used did specify optional equipment to include a 3 1/2-ton air conditioner, electric range and 2-door frost free refrigerator and dishwasher. The unpaid balance was $8,900.00, plus finance charges of $4,671.88 for a total cost of $13,571.88, which was to be paid in 84 monthly installments commencing in January, 1971.
The back of the contract contained a disclaimer of all warranties by the seller and provided that buyer was to take the unit 'as is.' The disclaimer clause provided that the seller specifically makes no warranty as to its merchantability or of its fitness for any purpose. The paragraph did provide that on new units the manufacturer's own warranty would apply together with other separate and individual warranties of the various makers of the accessories and equipment furnished. Just above the purchasers' signatures was a provision whereby the purchasers certified that they had read the matter printed on the back thereof and agreed to it as a part of the agreement.
The mobile home was not delivered on time and when Appellee contacted Appellant on several occasions in December, 1970, he was assured that the unit would be delivered in a few days. On December 31, 1970, Appellee received a call to advise him that the mobile home had been delivered to Augusta, Georgia, where he would be required to pick it up. Appellee went to Georgia and made arrangements for the mobile home to be moved to Columbia, South Carolina, at a cost of $78.00. After the unit was delivered on January 4, 1971, and hooked up to utilities, the Appellee discovered many defects including the fact that the heating furnace was electric rather than gas, and it was equipped with a 3-ton air conditioning unit rather than the 3 1/2-ton unit which was ordered. According to Appellee's testimony he made numerous telephone complaints to both the seller and the manufacturer without any success in having the defects remedied. On January 21, 1971, he wired the seller that the order was cancelled. At that time he was paying rent for another place to live, storage on his furniture and the cost of the rental space for the mobile home. When the seller made no effort to return his deposit and pay other expenses he had incurred, he decided to move into the mobile home in order to minimize his expenses. In this regard, his testimony was that '* * * when it became apparent that Mr. Bowen or the factory wasn't going to do anything at all I went ahead and had Mr. Duncan repair the heating system and get it going so we could move in it and live in it.' He lived in the mobile home for just over a year and then had it moved back to El Paso at a cost of $1,880.00. While living in South Carolina he spent about $581.00 to repair the heating system and convert it to a gas heating system.
Appellant by his first and third points of error complains that the trial Court erred in finding that Appellee rejected the mobile home and erred in failing to find that Appellee subsequently ratified the sale and accepted the unit. There are no findings of fact and conclusions of law filed in the case, but in the judgment entered the trial Court found that Appellee '* * * rightfully rejected the Sherwood two-bedroom, 65 12 Foot, Mobile Home, Serial No. 2409, tendered to him by (Appellant), as non-conforming to the Contract of Sale * * *.'
The Tex.Bus. & Comm.Code Ann. § 2.601, V.T.C.A. provides:
'* * * if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(1) reject the whole; . . .'.
Section 2.602 requires that the rejection be within a reasonable time after delivery, with notice to the seller. Then in § 2.711 there is the following provision:
'(c) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller.'
In this case, Appellee received the mobile home in South Carolina on January 4, 1971. On January 21st, he rejected the unit and advised the seller. Where goods fail 'in any respect' to conform to the contract the buyer may, under § 2.601 of the Business and Commerce Code, reject the entire unit. Mobile Housing, Inc. v. Stone, 490 S.W.2d 611 (Tex.Civ.App.--Dallas 1973, no writ); Bender's U.C.C. Service, Vol. 3, § 14.02(1). Certainly the telegram dated January 21, 1971, was evidence to support the trial Court's finding that the Appellee rightfully rejected the mobile home. It did not conform in every respect to the one ordered, particularly with regard to the size of the air conditioner. The rejection within a few days after the unit had been connected up and all equipment tested, but before Appellee moved into it, was under the circumstances a rejection within a reasonable time and notice was given to the seller by telegram to comply with § 2.602 of the Business and Commerce Code.
Although § 2.711(c) gives a buyer a security interest in goods in his possession, and even a right to resell them, it does not give a right to continued use of the goods until the security interest is satisfied. The Appellee testified that after discovering the defects in the mobile home, he telephoned both the seller and manufacturer to obtain some satisfaction toward the repairs and change of the defects. When he sent his telegram on January 21st to the seller, he said therein 'Unable to secure commitment from factory.' A week earlier he had wired the seller and General Electric Credit Corporation, who was to originally finance the mobile home, that the unit was damaged and that he would not pay until it was completely repaired.
Failing to get satisfactory assurance from either the seller or manufacturer concerning the damaged and non-conforming mobile home, Appellee did not seek to foreclose his security interest for the down-payment, transportation and storage expense. Nor did he act in accordance with § 2.604, which provides: Instead, he decided sometime in February to move into the mobile home and spent nearly $600.00 to repair the heating unit and change from an electric to a gas heater. By doing so he accepted the goods under § 2.606, and under § 2.607 became obligated to pay at the contract price for the goods accepted, retaining such rights, if any, as existed for damages under § 2.714 and § 2.715. Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196 (Tex.Civ.App.--Houston (1st Dist.) 1973, writ filed).
On numerous occasions Courts have held that one who exercises dominion over or alters goods in his possession thereby accepts the goods as delivered. In F. W. Lang Co. v. Fleet, 193 Pa.Super. 365, 165 A.2d 258 (1960), suit was brought to recover the sales price of an ice cream freezer and a refrigeration compressor unit sold to the defendant. It was contended that the equipment was defective and wholly unsuitable for the purpose intended. The Court in permitting recovery considered the provisions of § 2.602 and § 2.606 of the Uniform Commercial Code and said:
'In the instant case the defendants exercised dominion over the compressor unit by using it to operate an air conditioner. This is completely inconsistent with the seller's ownership. * * *
A rescission based on breach of warranty must be made within a reasonable time and cannot be made if the buyer exercises an act of dominion over the goods or permits the goods to be altered or changed while in his exclusive possession--'.
In Park County Implement Co. v. Craig, 397 P.2d 800 (Wyo.Sup.Ct.1964), suit was brought for the amount due on a purchase of a truck chassis and cab. After delivery of...
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