Chamberlain v. Bob Matick Chevrolet, Inc.

• Citation: 239 A.2d 42,4 Conn.Cir.Ct. 685
• Decision Date: 24 November 1967
• Docket Number: No. CV,CV
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 A.L.R.3d 456, 4 UCC Rep.Serv. 936 Ernestine CHAMBERLAIN v. BOB MATICK CHEVROLET, INC. 7-6512-7370.

Page 42

239 A.2d 42

4 Conn.Cir.Ct. 685, 24 A.L.R.3d 456,

4 UCC Rep.Serv. 936

Ernestine CHAMBERLAIN v. BOB MATICK CHEVROLET, INC.

No. CV 7-6512-7370.

Circuit Court of Connecticut, Appellate Division.

Argued June 12, 1967.

Decided Nov. 24, 1967.

Andrew M. Ullman, New Haven, for appellant (plaintiff).

Edward F. Piazza, New Haven, with whom, on the brief, was Joseph F. Trotta, New Haven, for appellee (defendant).

KOSICKI, Judge.

The complaint in this action, as amended, alleged a breach of warranty by the defendant in the sale of a used automobile and sought relief by rescission or by recovery of damages. The finding of the court, which is not subject to correction except as made of our own motion and hereinafter set out, shows the following facts: In the summer of 1965, Christopher Komisarjevsky, age twenty, a student at Union College, wanted to buy a second-hand or used car for himself. He and his mother, Ernestine Chamberlain, the plaintiff in this action, visited between five and ten car lots. Eventually he came to defendant's place of business and talked with Joseph LaValle, a salesman, telling him he wanted to buy a car for $150 or $200. He looked at some automobiles which he did not like and then was shown a 1958 blue Chevrolet and was told that the price was $395. Christopher told the salesman he would be willing to spend about $300. The salesman said he did not know but would talk to the manager and would try and get it for him. The car had a defective master cylinder and Christopher did not drive it on that day.

The following day, Christopher came with his mother and they, with the salesman, went for a ride in the car. The master cylinder had been repaired. It was then discovered that the car pulled to the right. At this time the salesman told Christopher and the plaintiff that they could take the automobile to any mechanic or the Consumers Consultants to have the car examined and if it was found that something further needed to be done and if the defendant could do that work and still sell the car at the indicated price, it would be done. The plaintiff said that she and her son had just so much money available and did not plan to spend more than $300. After some bargaining, the manager finally agreed to sell the car at the price of $325, but stated that since the master cylinder was fixed and the defendant would repair 'the pulling to the right,' the car was sold 'as is,' with no guarantee. The salesman told this to the plaintiff and her son.

It was explained to both the plaintiff and her son that 'no guarantee' meant that once they drove the car out of the lot, it became their responsibility. They were also told that at the price of $350 there would have been a guarantee. The 'pulling to the right' defect was corrected, and Christopher drove the car and found it satisfactory. A 'sales agreement' was signed by the plaintiff. She was given a receipt which is also called 'car invoice.' This receipt or invoice was stamped clearly on its face in distinct large lettering: 'This car not guaranteed.' The receipt was for $348.38, which included sales tax, license and title fees. The sales agreement also had a notation that the vehicle was being sold without a guarantee. The transaction took place on August 20, 1965.

Christopher picked up the car about Saturday of that week after it was registered in the plaintiff's name. Thereafter Christopher drove the car to and from work between Meriden and Cheshire. The car developed an oil leak and he took it to his oil dealer, Austin Meacham, for repair. He picked up the car at his oil dealer's place either that same day or the following day. Then he drove the car about 200 miles before going from Cheshire to Boston and from Boston to his school in Schenectady, New York, for a total of approximately 500 miles. When he picked up the car after the oil leak repair no one spoke to him about any defects. He drove the car for a week and a half after the oil repair before he went to school in Schenectady, New York. Christopher sold the car in September, 1966, in Schenectady, New York.

Although the plaintiff made no motion to correct the finding, we have, sua sponte, pursuant to Practice Book § 985, examined the evidence and, in order that the issues presented by the pleadings may be fully understood and to avoid the impression that facts have been found in language of doubtful meaning, we order that the following facts be added to the finding. This correction is needed to place before us the claim of the plaintiff that the car purchased by her was dangerous and unfit for the purpose for which it was to be used and, consequently, that there was a breach of an implied warranty of fitness. General Statutes §§ 42a-2-313, 42a-2-314, 42a-2-315.

Shortly after the purchase, during the repair of the oil leak on the car, Meacham, the oil dealer, had noticed, and on trial so testified, that the upper and lower ball joints, the idler arm and the rod ends in the front end of the car, and beneath the body, were worn and defective and required replacement for safe operation of the car. No information of this alleged condition was communicated to the plaintiff, to her son, or to the defendant until sometime late in September, 1965, after the plaintiff returned from Europe. On September 29, the plaintiff's husband, stepfather of Christopher, wrote a letter to the defendant claiming rescission and offering to return the automobile, upon return of the money paid, because of the breach of warranty at the time of sale as revealed by the defects described above.

Upon the foregoing facts the court concluded that the car was sold 'as is,' with no guarantee; that it was operated by the plaintiff's son for over 500 miles; that the car was then sold by the plaintiff's son in September, 1966; that there was no warranty, express or implied, from the defendant to the plaintiff respecting the alleged defective condition of the car; and that the plaintiff had failed to sustain her action by a fair preponderance of the evidence.

In her assignment of errors, the plaintiff claims that the court erred (1) in permitting the introduction into evidence of a waiver of guarantee when such a defense was not pleaded specially in the answer; (2) in reaching the conclusion that since the car was 'not guaranteed,' the plaintiff had waived all warranties, expressed or implied; and (3) in rendering judgment for the defendant when the 'verdict' was not supported by the law or the evidence. In the last assignment the plaintiff has evidently confused the ultimate finding of a jury on the facts in a criminal case and the finding and conclusions of the court in a civil action. See Practice Book §§ 989(3), (6) & Form 819(B) (7), (8). We shall consider this assignment, however, only insofar as it may have reference to the claim that the court erred in the conclusions reached upon the subordinate facts properly found and in rendering judgment for the defendant when the conclusions reached by the court do not support it. Practice Book § 989(3) & Form 819(B)(7).

Much of the brief and argument of the plaintiff has been devoted to certain basic assumptions of fact which are not derived from the finding and amount to interpretations of evidence which find no existence either in the plaintiff's claims as to the purpose of the evidence introduced or in the rulings and conclusions of the court.

The plaintiff has filed no motion to correct the finding, and from our examination of the evidence, with the additions we have made of our own motion, we find no reason to disturb it. Practice Book § 985. There was evidence, if credited by the court, to sustain the court's conclusion that the secondhand automobile was sold by the defendant to the plaintiff 'as is,' with no guarantee attached and no warranty, express or implied. The first assignment of error asserts that the court erroneously permitted the introduction into evidence of a 'waiver of guaranty' when such a defense was not pleaded specially in the answer. The second assignment claims error in the court's conclusion that since the car was 'not guaranteed' the plaintiff had waived all warranties, express or implied.

All assignments of error must be specific and shall assert directly that the trial court committed error in the respects specified in substantial compliance with Form 819, (A) and (B). Practice Book § 990. This would require that at least the first assignment be accompanied by an exhibit showing the claimed objectionable evidence, the objection and the exception taken, as illustrated in Practice Book, Form 604. Practice Book § 989(4) & Form 819(B). This the plaintiff failed to do. The second assignment, attacking the conclusion of the court, incorrectly imports into the finding the statement that the court had concluded that 'the plaintiff had waived all warranties expressed or implied.' Nowhere in the finding is such conclusion to be found. The finding, simply stated, was that the sale of the car was without any guarantee or warranty. That was a question of fact to be determined by the trial court and, with no challenge of the finding before us, we are in no position to alter the finding without retrying the case. This we cannot do. Bent v. Torell, 139 Conn. 744, 748, 97 A.2d 270.

It is conceded by the plaintiff that no guarantee is involved. The principal claim, however, is that the defendant was liable under an express or implied warranty of fitness under the provisions of General Statutes §§ 42a-2-313 and 42a-2-314. Much of the plaintiff's argument is centered on the words 'not guaranteed' contained in the invoice, which, as urged by the plaintiff, would not exclude a warranty. That the parties used the word 'guarantee' instead of the word 'warranty' in this contract is of slight consideration in view of the facts and circumstances surrounding the parties and their manifest intention in making the contract. They were people of intelligence but...