Dickson v. U-J Chevrolet Co., Inc., U-J

• Citation: 454 So.2d 964
• Decision Date: 13 July 1984
• Docket Number: U-J
• Parties: 39 UCC Rep.Serv. 470 Charles M. DICKSON, Jr. v.CHEVROLET COMPANY, INC., a corp. 82-1298.
• Court: Alabama Supreme Court

Page 964

454 So.2d 964

39 UCC Rep.Serv. 470

Charles M. DICKSON, Jr. v. U-J CHEVROLET COMPANY, INC., a corp.

82-1298.

Supreme Court of Alabama.

July 13, 1984.

John M. Tyson, Jr. of Tyson & Tyson, Mobile, for appellant.

Alex T. Howard, Jr., Richard T. Dorman, and Robin S. Brigham of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.

FAULKNER, Justice.

Charles M. Dickson, Jr., appeals from a final judgment in favor of the defendant, U-J Chevrolet Company, entered after an ore tenus non-jury hearing in an action for revocation of acceptance under the Uniform Commercial Code. We affirm.

The trial judge, Robert L. Byrd, Jr., stated the facts as follows in his order:

"Mr. Dickson purchased a 1980 Chevrolet dump truck from U.J. Chevrolet on December 31, 1980. The sales price for the dump truck was $39,849.91. Dickson accepted delivery of the truck on January 6, 1981.

"Within one week after accepting delivery of the truck, Mr. Dickson brought the vehicle to the U.J. Service Department and complained that the dump body on the truck was leaning to the right. The dump body on the 1980 truck is supported by a tandem spring assembly with a total 38,000 pound capacity. U.J. personnel determined that the spring on the right side had a 17,000 pound capacity and the spring on the left had a 19,000 pound limit. U.J. personnel ordered a new right side spring assembly direct from the Chevrolet Motor Division factory in Flint, Michigan, on January 14, 1981.

"Despite the slight differentiation in the springs, Mr. Dickson used the truck in his dirt-hauling business and operated it while new spring parts were on order. The truck was driven 855 miles by Mr. Dickson while it was in his possession during a two week period of time after it was delivered to him on January 6, 1981. The truck was not dangerous to operate with the minor difference in the springs and the Court finds that there is no compelling reason that the dump truck could not have been used by Mr. Dickson in the condition it was originally delivered.

"Mr. Dickson's attorney sent a letter to U.J. dated January 26, 1981 wherein Mr. Dickson attempted to reject or revoke acceptance of the 1980 dump truck, demanded a refund of the value paid, and demanded reimbursement of other incidental costs. Mr. Dickson returned the dump truck to the dealer by January 26, 1981.

"In an effort to correct the existing spring problem as quickly as possible, on January 20, 1981, U.J. purchased a spring from a local company and installed it on the truck. This spring did not obviate the problem, and U.J. so advised Mr. Dickson, stating that it would still be necessary to install the spring ordered from the factory.

"The spring parts that had been ordered from the Chevrolet factory on January 14, 1981 were received at the U.J. dealership on or around January 27, 1981. The parts were installed on the vehicle and the minor defect in the spring was fully corrected by or on about January 27, 1981. The replacement of the spring assembly was an uncomplicated job that took approximately one-half day to complete. The value of the repair was $606.00, of which amount $485.00 was attributable to the parts expense. The court finds that the cost of the replacement of the spring was nominal or de minimis in comparison to the $39,849.91 value of the dump truck.

"After the repairs on the spring assembly were successfully completed by U.J., Mr. Dickson refused to retake possession of the truck.

"The dump truck was driven on several different occasions during the spring of 1981 by U.J. personnel after the spring assembly was replaced. On each of these occasions the vehicle was found to be in excellent operating condition. The truck was ultimately sold to another purchaser in February of 1982, who used the dump truck in his dirt hauling business for 14 months and has not experienced any service problems with the spring assembly.

"The Court finds that Mr. Dickson did not reject delivery of the 1980 truck but accepted delivery on January 6, 1981 and acceptance was made on the reasonable assumption that the minor non-conformity in the spring assembly would be seasonably cured after the required parts arrived from the Chevrolet factory. The Court finds that Mr. Dickson failed to prove that the value of the truck was substantially impaired by any defects in its condition. Ala.Code, § 7-2-608(1) (1975). The Court also finds that U.J. was not given an appropriate opportunity to cure the minor defect in the spring assembly prior to the time Mr. Dickson attempted to revoke acceptance of the truck, and that U.J. seasonably and timely cured the defect."

The issue presented for our review is whether the trial court's findings of fact are so clearly and palpably wrong or without supporting evidence that they should be reversed. Silverman v. Charmac, Inc., 414 So.2d 892, 894 (Ala.1982).

The trial court properly found acceptance of the truck by Dickson. Under § 7-2-606, Code of Alabama 1975, acceptance occurs when the buyer:

"(a) After a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or

"(b) Fails to make an effective rejection (subsection (1) of Section 7-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or

"(c) Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him."

The evidence shows that Dickson used the truck in January 1981, and that he put over 800 miles on the truck. In fact, Dickson continued to use the truck while waiting for the new spring assembly to arrive. Thus, acceptance of the truck by Dickson was clearly shown. Rozmus v. Thompson Lincoln-Mercury Co., 209 Pa.Super. 120, 224 A.2d 782 (1966); Woods v. Van Wallis Trailer Sales Co., 77 N.M. 121, 419 P.2d 964 (1967).

Because the trial court found that Dickson accepted,...