Dale v. King Lincoln-Mercury, Inc.

• Decision Date: 18 February 1984
• Docket Number: LINCOLN-MERCUR,No. 54801,INC,54801
• Citation: 676 P.2d 744,234 Kan. 840
• Parties: , 38 UCC Rep.Serv. 35 LaVerne L. DALE, Appellee, v. KING, Appellant.
• Court: Kansas Supreme Court

Page 744

676 P.2d 744

234 Kan. 840, 38 UCC Rep.Serv. 35

LaVerne L. DALE, Appellee, v. KING LINCOLN-MERCURY, INC., Appellant.

No. 54801.

Supreme Court of Kansas.

Feb. 18, 1984.

Syllabus by the Court

Under K.S.A. 50-639, one of the sections of the Kansas Consumer Protection Act, a car dealer who is engaged in the business of selling used cars cannot, by extending to the purchaser a narrow express warranty, exclude, modify or limit the implied warranty of merchantability and fitness for use which is imposed by law.

Everett C. Fettis, of Fettis & McClure, Wichita, argued the cause and was on the brief, for appellant.

David H.M. Gray, of Gragert, Hiebert & Gray, Wichita, argued the cause and was on the brief, for appellee.

MILLER, Justice:

This is an appeal by the defendant, King Lincoln-Mercury, Inc. (King), from a judgment entered against it in the District Court of Sedgwick County for breach of implied warranty of merchantability in the sale of a used car. Plaintiff, LaVerne L. Dale, was the used car purchaser. The single issue raised by appellant is that the trial court erred in awarding judgment based upon breach of implied warranty of merchantability.

On April 7, 1981, Dale bought a 1978 Buick LeSabre Custom with 32,795 miles on it from King Lincoln-Mercury in Wichita, Kansas. Dale paid almost $5,000 for the car, which was described as a "cream puff," meaning that it was excellent and in tip-top condition. The following express warranty is handwritten on the face of the sales contract:

"30 Day or 1000 mile Warranty 100% on Drive Line & Air Conditioner."

Twenty-two days after purchase, the car's transmission failed, and the $468 repair bill was paid by King under the express warranty. About thirty days later, during a Memorial Day weekend trip to Nebraska, the car's motor failed. Dale rented a car and drove home to Wichita so that he could be at work the next week. The dealer in Lincoln, Nebraska, to whom Dale had taken the car, said he could not repair it for about a month, so Dale returned to Nebraska, rented a tow-bar and hitch, towed the car to Marion, Kansas, and had it repaired by Webster Auto Service of that city. The engine block was replaced at a cost of $1,213.28.

There was no evidence of misuse of the vehicle by Dale. Also, it developed that there had been major repair to the car before it was acquired by King Lincoln-Mercury. The engine had been repaired five times in 1979; repairs included replacement of the engine block, the camshaft, a cylinder head, and other miscellaneous parts. King, however, was not aware of those repairs and had no knowledge of any defect in the engine when it sold the vehicle to Dale.

Appellant's primary argument is that the express warranty, written on the face of the sales contract, limits the implied warranty of merchantability. We do not agree.

This was a consumer transaction, and it is governed by the provisions of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. Under the act, a consumer is defined as an individual who acquires property for personal or family purposes. K.S.A. 50-624(b). A consumer transaction means a sale, for value, of property within this state to a consumer by a supplier. K.S.A. 50-624(c). A supplier is a dealer or seller who, in the ordinary course of business, solicits or engages in consumer transactions. K.S.A. 50-624(i). Dale falls within the definition of a consumer; King Lincoln-Mercury, Inc., falls within the definition of a supplier; and the sale by King, in the ordinary course of its business, was a consumer transaction.

K.S.A. 50-639, a part of the Kansas Consumer Protection Act, deals with warranties. Insofar as it is here applicable, that statute says:

"(a) Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall:

"(1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for a particular purpose; or

"(2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.

.... "(c) A supplier may limit the supplier's implied warranty of merchantability and fitness for a particular purpose with respect to a defect or defects in the property only if the supplier establishes that the consumer had knowledge of the defect or defects, which became the basis of the bargain between the parties....

"(d) Nothing in this section shall be construed to expand the implied warranty of merchantability as defined in K.S.A. 84-2-314 to involve obligations in excess of those which are appropriate to the property.

"(e) A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any actual damages recovered, award reasonable attorney's fees and a civil penalty under K.S.A. 50-636, and amendments thereto, or both to be paid by the supplier who caused the improper disclaimer to be written.

"(f) The making of a limited express warranty is not in itself a violation of this section."

K.S.A. 84-2-314, referred to in K.S.A. 50-639, is a part of the Kansas Uniform Commercial Code. It provides in substance that a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. For goods to be merchantable, they must be at least such as pass without objection in the trade under the contract description, and they must be fit for the ordinary purposes for which such goods are used.

The first section of the Kansas Consumer Protection Act provides:

"This act shall be construed liberally to promote the following policies:

....

"(c) to protect consumers from unbargained for warranty disclaimers ...." K.S.A. 50-623.

In the case of J & W Equipment, Inc. v. Weingartner, 5 Kan.App.2d 466, 469, 618 P.2d 862 (1980), the court observed that:

"Kansas consumer law has become increasingly protective [in the area of warranties of merchantability] and the Kansas Consumer Protection Act, K.S.A. 50-623 et seq.,...