Christie v. Dalmig, Inc., No. 111-78

Docket NºNo. 111-78
Citation136 Vt. 597, 396 A.2d 1385
Case DateJanuary 11, 1979
CourtUnited States State Supreme Court of Vermont

Page 1385

396 A.2d 1385
136 Vt. 597, 25 UCC Rep.Serv. 1294
Lewis W. CHRISTIE and Margaret P. Christie
v.
DALMIG, INC. d/b/a Barre Home Supply.
No. 111-78.
Supreme Court of Vermont.
Jan. 11, 1979.

Page 1386

[136 Vt. 598] James D. McKnight of Joseph P. McEntyre, Plainfield, for plaintiffs.

Abare, Donaghy & Nicholls, P. C., Barre, for defendant.

Before [136 Vt. 597] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

[136 Vt. 598] HILL, Justice.

This appeal involves the sale of new consumer goods by the defendant-appellant to the plaintiffs, Lewis and Margaret Christie. The plaintiffs sued alleging breach of warranty and consumer fraud. The trial court found for them on both claims. We affirm the finding of a warranty violation but reverse as to consumer fraud.

The plaintiffs purchased a two-piece fiberglass tub and shower unit from the defendant on September 12, 1975. The unit was packaged in two cardboard boxes that were placed in the plaintiffs' pickup truck by one of the defendant's employees. Although given an opportunity to do so, the plaintiffs did not inspect the goods at the seller's place of business. In transporting them to their home, the plaintiffs were required to travel over approximately three miles of dirt road. After carrying the boxes into the house and opening them, they discovered that the tub was cracked and damaged beyond use. That evening they telephoned the defendant and reported the damage. They were told to return the tub, which they did. Their repeated demands for a replacement were ignored. The plaintiffs then returned the shower unit and demanded a refund. [136 Vt. 599] This too was ignored. They retained counsel who repeated their demand for a refund. When the defendant did not respond, the plaintiffs filed suit alleging breach of an implied warranty of merchantability under Article 2 of Vermont's Uniform Commercial Code, 9A V.S.A. §§ 2-101 to 2-725, and a violation of the Consumer Fraud Act, 9 V.S.A. §§ 2451-2462.

The trial court found that the defendant had breached an implied warranty of merchantability

Page 1387

because the goods were damaged at the time the buyers took delivery. The defendant had contended that the plaintiffs damaged the goods after delivery, but he does not now dispute the finding to the contrary. The court also found a violation of the Consumer Fraud Act under rules and regulations of the Attorney General adopted pursuant to the Act. See 9 V.S.A. § 2453(c)-(d). It concluded that the plaintiffs were entitled to treble damages (measured by the purchase price), together with all legal fees, court costs, and interest at the rate of 81/2% From the date of sale. See 9 V.S.A. § 2461(b).

The appellant contends that the trial court erred in finding an implied warranty of merchantability with respect to these defects. We reject this contention. The argument against the trial court's finding is based on 9A V.S.A. § 2-316(3)(b). That section of the Uniform Commercial Code provides that no implied warranty attaches to defects which an examination ought to reveal if the buyer fails to examine the goods despite the seller's demand that he do so. See 9A V.S.A. § 2-316, Comment 8. Assuming the request involved in this case was a demand...

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22 practice notes
  • In re EpiPen Marketing, Sales Practices & Antitrust Litig., MDL No: 2785
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 27, 2020
    ...Practices Act)); Oklahoma (Okla. Stat. tit. 15, § 752(14) (Oklahoma Consumer Protection Act)); and Vermont (Christie v. Dalmig, Inc., 396 A.2d 1385, 1388 (Vt. 1979) (discussing requirements of Vermont Consumer Fraud Act)). 62. These states include: Maine (Searles v. Fleetwood Homes of Pa., ......
  • Foti Fuels, Inc. v. Kurrle Corp., No. 12–195.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 23, 2014
    ...¶ 17. A party violates the CFA if he or she engages in an unfair or deceptive act or practice in commerce. See Christie v. Dalmig, Inc., 136 Vt. 597, 600, 396 A.2d 1385, 1387 (1979). Both the Attorney General and injured private parties may prosecute violations of the CFA. Private parties a......
  • Elkins v. Microsoft Corp., No. 01-431.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 1, 2002
    ...Collection Serv., Inc., 156 Vt. at 544-45, 594 A.2d at 429; Poulin, 147 Vt. at 124-25, 513 A.2d at 1171-72; Christie v. Dalmig, Inc., 136 Vt. 597, 600-01, 396 A.2d 1385, 1387-88 (1979). Russell is particularly significant because it is an antitrust 817 A.2d 17 Third, the harmonization provi......
  • Dernier v. Mortg. Network, Inc., No. 12–226.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 18, 2013
    ...considered objectively. See Carter v. Gugliuzzi, 168 Vt. 48, 56, 716 A.2d 17, 23 (1998) (test for “deceptive” acts); Christie v. Dalmig, 136 Vt. 597, 601, 396 A.2d 1385, 1388 (1979) (test for “unfair” acts). The appropriate test here—correctly identified, at least approximately, by plaintif......
  • Request a trial to view additional results
22 cases
  • In re EpiPen Marketing, Sales Practices & Antitrust Litig., MDL No: 2785
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 27, 2020
    ...Practices Act)); Oklahoma (Okla. Stat. tit. 15, § 752(14) (Oklahoma Consumer Protection Act)); and Vermont (Christie v. Dalmig, Inc., 396 A.2d 1385, 1388 (Vt. 1979) (discussing requirements of Vermont Consumer Fraud Act)). 62. These states include: Maine (Searles v. Fleetwood Homes of Pa., ......
  • Foti Fuels, Inc. v. Kurrle Corp., No. 12–195.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 23, 2014
    ...¶ 17. A party violates the CFA if he or she engages in an unfair or deceptive act or practice in commerce. See Christie v. Dalmig, Inc., 136 Vt. 597, 600, 396 A.2d 1385, 1387 (1979). Both the Attorney General and injured private parties may prosecute violations of the CFA. Private parties a......
  • Elkins v. Microsoft Corp., No. 01-431.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 1, 2002
    ...Collection Serv., Inc., 156 Vt. at 544-45, 594 A.2d at 429; Poulin, 147 Vt. at 124-25, 513 A.2d at 1171-72; Christie v. Dalmig, Inc., 136 Vt. 597, 600-01, 396 A.2d 1385, 1387-88 (1979). Russell is particularly significant because it is an antitrust 817 A.2d 17 Third, the harmonization provi......
  • Dernier v. Mortg. Network, Inc., No. 12–226.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 18, 2013
    ...considered objectively. See Carter v. Gugliuzzi, 168 Vt. 48, 56, 716 A.2d 17, 23 (1998) (test for “deceptive” acts); Christie v. Dalmig, 136 Vt. 597, 601, 396 A.2d 1385, 1388 (1979) (test for “unfair” acts). The appropriate test here—correctly identified, at least approximately, by plaintif......
  • Request a trial to view additional results

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