Conte v. Dwan Lincoln-Mercury, Inc.

• Court: Connecticut Supreme Court
• Writing for the Court: Before HOUSE; BARBER
• Citation: Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144, 20 U.C.C.Rep. 899 (Conn. 1976)
• Decision Date: 21 December 1976
• Docket Number: LINCOLN-MERCUR,INC
• Parties: , 20 UCC Rep.Serv. 899 Anthony CONTE v. DWAN, et al.

Page 144

374 A.2d 144

172 Conn. 112, 20 UCC Rep.Serv. 899

Anthony CONTE v. DWAN LINCOLN-MERCURY, INC., et al.

Supreme Court of Connecticut.

Argued Oct. 14, 1976.

Decided Dec. 21, 1976.

George W. Billings III, Norwalk, for appellant (named defendant).

Edward M. Sheehy, Bridgeport, for appellant (defendant Ford Motor company).

Allan S. Mall, Stamford, and Michael R. Friedman, Westport, for appellee (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The plaintiff brought this action against Dwan Lincoln-Mercury, Inc., hereinafter referred to as Dwan, and Ford Motor Company, hereinafter referred to as Ford. The complaint, in one count against both defendants, alleges the sale of a Lincoln Continental automobile and sets forth claims of breach of warranty and revocation of acceptance. The defendants Dwan and Ford each filed an answer denying the allegations of breach of warranty and revocation of acceptance, and a special defense claiming that the plaintiff could not properly maintain the action and recover damages because of the limitations set forth in the basic written warranty. In addition, Dwan filed a counterclaim seeking damages for storage of the automobile after its return.

The case was tried to a jury of six. At the conclusion of the evidence, the defendant Dwan moved for a directed verdict as to the claim for revocation of acceptance on the grounds that such revocation was not timely, that there was no evidence of nonconformity substantially impairing the automobile's value, and that Dwan had made all repairs and performed its obligation as required by the warranty. The defendant Ford moved for a directed verdict on the plaintiff's claim for revocation of acceptance on the grounds that there was no evidence that the plaintiff, as buyer, bought the automobile from Ford or that Dwan was the agent of Ford insofar as the sale of the automobile was concerned, that there was no evidence that the automobile purchased from Dwan had a nonconformity which substantially impaired its value, and that there was no evidence that the plaintiff ever gave notice to the defendant of his revocation of acceptance. Both defendants also argued for a directed verdict on the breach of warranty claim asserting that no evidence was introduced by the plaintiff that the automobile which he purchased from Dwan was worth substantially less than the value for which the plaintiff had contracted.

The court granted those motions, in effect, only as to the plaintiff's claim of breach of warranty because of lack of evidence on damages, and submitted the plaintiff's claim on revocation of acceptance to the jury. The court also directed a verdict for the plaintiff on the defendant Dwan's counterclaim. The jury returned a verdict for the plaintiff to recover of both defendants, "on rescission," the purchase price of the automobile with interest, and returned a directed verdict for the plaintiff on the counterclaim. Motions were filed to set aside the verdicts, and Ford moved for judgment notwithstanding the verdict against it, which the court denied. Both defendants have appealed. Dwan claims that the verdict against it is against the evidence because there was no evidence that the value of the automobile was substantially impaired or that the plaintiff attempted to revoke within a reasonable time. Dwan also claims that the court erred in its instructions to the jury on the issue of revocation of acceptance, and that the court committed error in directing a verdict for the plaintiff on the counterclaim. Ford claims that the verdict against it is against the evidence on the ground that there is no evidence that Dwan was the agent of Ford in connection with the sale of the automobile and no evidence that the automobile was substantially impaired or that the plaintiff gave notice to Ford of his revocation of acceptance. Ford also claims that the court erred in its instructions to the jury on the issues of revocation of acceptance, agency and certain statements made by a witness, as well as in admitting into evidence certain letters from Ford to the plaintiff.

When a verdict is attacked on the ground that it is against the evidence, the question on appeal is whether on the basis of the evidence introduced and viewing that evidence in a light most favorable to the plaintiff, a jury could have reasonably found a defendant or defendants liable. Duley v. Plourde, 170 Conn. 482, 485-486, 365 A.2d 1148; Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270. There was evidence from which the jury could reasonably have found the following facts: On or about March 25, 1970, the plaintiff entered into and signed an agreement with Dwan to purchase a 1970 Lincoln Continental automobile, which had been manufactured by Ford, and paid Dwan the total purchase price for the automobile. The following day, after being notified that the automobile was ready for delivery, the plaintiff went to pick up the automobile from Dwan but refused to do so because it was dirty and a door was out of alignment. The following day the plaintiff took the automobile, a warranty booklet, and other printed matter which was inside the vehicle. In 1970, the defendant Dwan was an authorized Lincoln Continental dealer under a written sales and service franchise agreement with the defendant Ford to sell and service automobiles. This agreement states that Dwan is not the agent of Ford. The purchase order signed by the plaintiff also recites that it is understood by the buyer that "there is no relationship of principal and agent between the dealer (Dwan) and the manufacturer (Ford)." The back of the purchase order agreement contained a stipulation, which the plaintiff acknowledged he had read as part of the agreement, that there are no warranties applicable to the automobile, except the most recent printed Ford Motor Company warranty or warranties, "and they shall be expressly in lieu of any other express or implied warranty, condition or guarantee on the new vehicle, chassis or any part thereof, including any implied warranty of merchantability or fitness and of any other obligation on the part of Ford Motor Company or the Selling Dealer." The basic Ford warranty provides that with respect to each 1970 passenger automobile built by Ford the dealer will repair or replace any part, except tires and tubes, that is found to be defective in factory materials or workmanship in normal use within twelve months from the date of original retail delivery or original use by Ford or any of its dealers, whichever is earlier. The day after the plaintiff took delivery of the automobile he noticed that the motor and transmission were leaking oil and that the cigarette lighter and windshield wiper did not work. The next morning the automobile was brought in to Dwan the windshield wiper was fixed and the plaintiff was told that he should make a list of his problems and Dwan would take care of them. Within a week, the electric windows did not operate and paint blistered on the vehicle. Between the time that the plaintiff took delivery in March, 1970, until May 3, 1971, Dwan had attempted to repair the automobile eight times as shown by Dwan's records. Between October 25, 1970, and May, 1971, the automobile became undriveable five times on the road and was towed to Dwan for repairs. At one time when the car was driven, the plaintiff received an electrical shock. Subsequently, an alternator was replaced and a fan belt repaired. Soon after the plaintiff purchased the automobile and until May, 1971, the plaintiff corresponded directly with Ford relating his problem with respect to the vehicle. On October 27, 1970, the plaintiff met with a representative of Ford and was assured, in the presence of Dwan's service manager, that his automobile would be repaired to the plaintiff's satisfaction. The last repair order for the automobile was May 3, 1971, when, two weeks after an alternator was replaced, the automobile had to be towed and a fan belt repaired. Upon being informed that the automobile had been repaired, the plaintiff told Dwan to keep it because the vehicle was dangerous and he wanted his money back or another automobile. After that, the plaintiff never picked up his vehicle. In May, 1971, after the automobile had been in the garage six to eight weeks in one year of ownership, after being told each time that the automobile was in good working order, after Ford sent its representative to ascertain the problem and have the vehicle put in good working condition, and after the automobile had been towed to the garage five times, the plaintiff refused, in May, 1971, to accept any further assurance from Dwan and Ford that the automobile was in good and safe order and refused to take delivery of the vehicle after the last purported repairs.

The defendant Dwan states the basic issue on its appeal to be "(w)hether the plaintiff as a purchaser of an automobile is entitled to rescind or revoke acceptance of the contract of sale of such automobile and thereby recover the purchase price from the defendant Dwan Lincoln-Mercury, Inc., when there is no evidence that the value of the automobile was substantially impaired." Although Dwan claims error in the instructions to the jury, it has not complied with the provision of the Practice Book which provides that when error is claimed in the charge to the jury, the brief of the appellant shall include not only a verbatim statement of all relevant portions of the charge but also all relevant exceptions to the charge. Practice Book § 631A(c)(2). Under the circumstances, we assume that the instructions were correct. See State v. Grayton, 163 Conn. 104, 114, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495.

The Uniform Commercial Code Sales is the law of this state. ¹ Before its enactment, breach of warranty and rescission were considered alternate remedies. Vitale v. Gargiulo, 144...