Cuchine v. H.O. Bell, Inc., No. 83-443

Docket NºNo. 83-443
Citation210 Mont. 312, 682 P.2d 723
Case DateJuly 03, 1984
CourtUnited States State Supreme Court of Montana

Page 723

682 P.2d 723
210 Mont. 312, 38 UCC Rep.Serv. 1787
Timothy CUCHINE, Plaintiff and Appellant,
v.
H.O. BELL, INC., and Ford Motor Credit Co., Defendants and
Respondents.
No. 83-443.
Supreme Court of Montana.
Submitted on Briefs March 30, 1984.
Decided June 4, 1984.
Rehearing Denied July 3, 1984.

Page 724

[210 Mont. 313] Tipp, Hoven, Skjelset & Frizzell, Missoula, for plaintiff and appellant.

Boone, Karlberg & Haddon, Barbara Conrad, Missoula, for defendants and respondents.

SHEEHY, Justice.

Timothy Cuchine appeals from a summary judgment of the District Court, Fourth Judicial District, Missoula County, in favor of Ford Motor Credit Company.

On October 15, 1980, Timothy Cuchine purchased a pickup from H.O. Bell, Inc. under a retail installment sales contract which was subsequently assigned to Ford Motor Credit Company. Cuchine later began experiencing difficulties with the pickup and returned it to H.O. Bell to be repaired. When it became apparent that the truck could not be adequately repaired, Cuchine left the truck with H.O. Bell and filed a suit against H.O. Bell and the credit company for rescission or revocation of the installment contract due to breach of the implied warranties of merchantability and fitness for a particular purpose. The credit company filed an answer, admitting that it was the assignee under the contract and asserting a counterclaim for the payments due under the contract. Shortly thereafter, the contract was [210 Mont. 314] reassigned to H.O. Bell and a motion for summary judgment was filed in the District Court. The District Court granted the credit company's motion for summary judgment and Cuchine now appeals from the order granting the motion.

The issue presented on appeal is whether the assignment of a retail installment sales contract imposes full contract liability on the assignee of certain rights under the contract.

Cuchine contends that the credit company assumed full contract liability when the assignment was accepted. Cuchine further contends that the credit company could not avoid this liability during the pendency of the action by reassigning the contract to H.O. Bell. Cuchine predicates the credit company's liability under the contract upon the following language which appears in the contract in bold, capital letters:

"NOTICE--ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED...

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7 practice notes
  • Lawson State Community College v. First Continental Leasing Corp.
    • United States
    • Supreme Court of Alabama
    • 24 Junio 1988
    ...673 (1st Cir.1981); Anderson v. Southwest Savings & Loan Ass'n, 117 Ariz. 246, 571 P.2d 1042 (Ct.App.1977); Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723 (1984); Lydig Const., Inc. v. Rainier Nat'l Bank, 40 Wash.App. 141, 697 P.2d 1019 The leading case in this regard is Michelin T......
  • H. John Homan Co., Inc. v. Wilkes-Barre Iron and Wire Works, Inc., WILKES-BARRE
    • United States
    • New Jersey Superior Court – Appellate Division
    • 11 Mayo 1989
    ...been persuaded both by its textual and public policy analyses and have rejected the restitutionary rule. See Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723 (Sup.Ct.1984) 7 (distinguishing Massey-Ferguson Credit Corp., supra, on its facts); Lydig Const., Inc. v. Rainier Nat. Bank, 4......
  • Lydig Const., Inc. v. Rainier Nat. Bank, No. 6196-III-5
    • United States
    • Court of Appeals of Washington
    • 28 Marzo 1985
    ...Gold Circle Stores v. Riviera Finance-East Bay, [697 P.2d 1021] Inc., 540 F.Supp. 15, 21 (N.D.Calif.1982); Cuchine v. H.O. Bell, Inc., 682 P.2d 723, 724-25 (Mont.1984); Meyers v. Postal Fin. Co., 287 N.W.2d 614, 616-19 (Minn.1979); James Talcott, Inc. v. Brewster Sales Corp., 16 U.C.C.Rep.S......
  • Winegar v. Froerer Corp., No. 890160
    • United States
    • Utah Supreme Court
    • 17 Mayo 1991
    ...Wash.App. 254, 511 P.2d 1365, 1368 (1973) (requiring assignee to expressly assume assignor's obligations); Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723, 725 (1984) (assignee liable only if it is "clearly shown that the assignee ... expressly or impliedly assumed the assignor's In......
  • Request a trial to view additional results
7 cases
  • Lawson State Community College v. First Continental Leasing Corp.
    • United States
    • Supreme Court of Alabama
    • 24 Junio 1988
    ...673 (1st Cir.1981); Anderson v. Southwest Savings & Loan Ass'n, 117 Ariz. 246, 571 P.2d 1042 (Ct.App.1977); Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723 (1984); Lydig Const., Inc. v. Rainier Nat'l Bank, 40 Wash.App. 141, 697 P.2d 1019 The leading case in this regard is Michelin T......
  • H. John Homan Co., Inc. v. Wilkes-Barre Iron and Wire Works, Inc., WILKES-BARRE
    • United States
    • New Jersey Superior Court – Appellate Division
    • 11 Mayo 1989
    ...been persuaded both by its textual and public policy analyses and have rejected the restitutionary rule. See Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723 (Sup.Ct.1984) 7 (distinguishing Massey-Ferguson Credit Corp., supra, on its facts); Lydig Const., Inc. v. Rainier Nat. Bank, 4......
  • Lydig Const., Inc. v. Rainier Nat. Bank, No. 6196-III-5
    • United States
    • Court of Appeals of Washington
    • 28 Marzo 1985
    ...Gold Circle Stores v. Riviera Finance-East Bay, [697 P.2d 1021] Inc., 540 F.Supp. 15, 21 (N.D.Calif.1982); Cuchine v. H.O. Bell, Inc., 682 P.2d 723, 724-25 (Mont.1984); Meyers v. Postal Fin. Co., 287 N.W.2d 614, 616-19 (Minn.1979); James Talcott, Inc. v. Brewster Sales Corp., 16 U.C.C.Rep.S......
  • Winegar v. Froerer Corp., No. 890160
    • United States
    • Utah Supreme Court
    • 17 Mayo 1991
    ...Wash.App. 254, 511 P.2d 1365, 1368 (1973) (requiring assignee to expressly assume assignor's obligations); Cuchine v. H.O. Bell, Inc., 210 Mont. 312, 682 P.2d 723, 725 (1984) (assignee liable only if it is "clearly shown that the assignee ... expressly or impliedly assumed the assignor's In......
  • Request a trial to view additional results

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