Explorers Motor Home Corp. v. Aldridge

• Decision Date: 12 August 1976
• Docket Number: No. 7825,7825
• Citation: 541 S.W.2d 851
• Parties: EXPLORERS MOTOR HOME CORPORATION, Appellant, v. V. G. ALDRIDGE et ux., Appellees.
• Court: Texas Court of Appeals

Page 851

541 S.W.2d 851

EXPLORERS MOTOR HOME CORPORATION, Appellant, v. V. G. ALDRIDGE et ux., Appellees.

No. 7825.

Court of Civil Appeals of Texas Beaumont.

Aug. 12, 1976.

Rehearing Denied Sept. 2, 1976.

William A. Petersen, Jr., Houston, for appellant.

Jim Tatum, Houston, for appellees.

DIES, Chief Justice.

Plaintiffs, V.G. and Josephine Aldridge, brought suit against Sportsman Travel Trailers Sales, the seller of a motor home, and Explorer Motor Home Corporation, the manufacturer of the motor home. Citation against Sportsman was quashed under Tex.R.Civ.P. 120a, and trial continued without it as a party. Plaintiffs sought only restitution totaling $15,158.36 based upon allegations that the motor home was defectively constructed and designed, that the home was worthless, and that it was 'unfit for the purpose for which it was designed and sold.' There was no privity of contract between plaintiffs and the remaining defendant, Explorer. Trial was to a jury which found that the home was still defective and was entirely worthless for the purposes for which it was intended; that $12,500 would put the plaintiffs in their original position; and that plaintiffs had no dollar value on their use and enjoyment of the home. The trial court rendered judgment on the verdict for $12,500. Plaintiffs have filed no brief for our consideration. Thus, factual statements made in defendant's brief will be taken as true. Tex.R.Civ.P. 419; Garza v. Salinas, 434 S.W.2d 153, 154 (Tex.Civ.App .--San Antonio 1968, no writ). We reverse and remand.

Defendant's first six points of error basically assert that the plaintiffs could not recover since there is no privity of contract between the parties to this suit, and that there is thus no basis in law for plaintiffs' recovery.

Plaintiffs are basically seeking recovery for the economic loss and diminution in value of the product which they purchased. On July 15, 1976, this court handed down its decision in Nobility Homes of Texas, Inc. v. Shivers, 539 S.W.2d 190 (Tex.Civ.App.--Beaumont 1976), which involved the same question of law as presented here. In that case, the majority held that no privity is required in cases involving economic loss of the product itself. The rationale of this principle is that there is an implied warranty of reasonable fitness of a product as a matter of public policy, and that the reasoning formerly used for requiring privity is permeated with illogical deductions and considerations.

We think it unnecessary to restate here the detailed reasons for this ruling, and refer the parties to Nobility Homes, supra, for relevant discussions therein. The principles enunciated in Nobility Homes are adopted herein.

Points of Error 1, 2, 3, 4, and 6 are without merit and overruled.

By Point of Error 5, the defendant complains that there is no theory of law upon which the trial court could have based a judgment and that there are no pleadings to support the judgment.

The fact that we have abrogated the necessity of privity in cases such as this does not, of course, automatically permit recovery by the plaintiffs. The plaintiffs here plead for recovery based only upon the theory of restitution--there were no other alternative pleadings, such as those for damages. The only special issue submitted to the jury which inquired into the monetary award to be given to the plaintiffs was that which asked which sum of money would put the plaintiffs in the position as they originally stood. This was proper under restitution theory since '(r)estitution is the amount which would put plaintiff in as good a position as he would have been in if no contract had been made. It restores to plaintiff the value of what he parted with in performing the contract.' Coon v. Schoeneman, 476 S.W.2d 439, 441 (Tex.Civ.App.--Dallas 1972, writ ref'd n.r.e.); 5 Corbin, Contracts § 996 (1964).

This is not to be confused with the theory of 'damages', which is to put the plaintiff in as good a position had the contract been performed. Id., at 441. Thus, restitution implies restoration of the status quo. Goff v. Graham, 306 N.E.2d 758, 767 (Ind.App.1974); Antoine v. McCaffery, 335 S.W.2d 474, 489 (Mo.App.1960).

But none of the parties here appear to fully comprehend the various elements of restitution. Besides the fact that the theory's ultimate purpose is to put the plaintiff in as good a position as he was in prior to the 'contract', it must also be remembered that:

'Restitution is not available as a remedy for a breach by defective or incomplete performance if the injured party accepts performance with knowledge of the defects or incompleteness, unless the performance accepted by him is so connected with his own land or chattels that its rejections would require their abandonment or expensive alteration.' Restatement of Contracts § 353 (1932).

See also Comment (a) under § 353. The illustrations under § 353 give the following relevant examples:

'2. A contracts to sell goods to B, giving a warranty of quality, and the price being paid in advance. In performance of this contract, A tenders goods of such bad quality that B is privileged to reject them; but with knowledge of the defect, B accepts the goods. The remedy of restitution is not available to B.'

'6. A contracts in install in B's house a furnace of a specified capacity. B pays half the price in advance. After completion, B uses the furnace; but it is so defective as to prove a total breach by A. The use by B is not such an acceptance as to deprive him of the remedy of restitution.'

Thus, distinctions are made as to whether the entire price has been paid, and as to what constitutes 'use' by the consumer. No such inquiries were submitted to the fact finder in the case at bar.

This concept is incorporated into the law of this State in Texas' Commercial Code. '(I)f the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may (1) reject the whole.' Tex.Bus. & Comm.Code § 2.601 (1968). But '(r)ejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.' Tex.Bus. & Comm.Code § 2.602(a) (1968).

There is no evidence, and plaintiffs have not asserted, that they ever rejected the motor home by giving the defendant seasonable notification. Plaintiffs purchased the home in July 1969 and ceased to use it in March 1971--a period of almost two years. During this time, the home was returned several times to the defendant for repairs. But, the defendant also states that the plaintiffs put 14,000 miles on the motor home; took two trips to Shreveport, Louisiana, and a trip to Colorado before finally driving it to California where the defendant was to attempt to correct the defects . Plaintiffs offered for the first time in their original petition to return the home, but have as yet not done so. No issues were submitted on the question of acceptance. For almost two years, the plaintiffs exercised dominion and control over the home which constituted incidents of ownership.

One who exercises dominion over or alters goods in their possession thereby accepts the goods under, Texas Business and Commerce Code. Bowen v. Young, 507 S.W.2d 600, 603 (Tex.Civ.App.--El Paso 1974, no writ) and the cases cited therein. Bowen held that there was acceptance As a matter of law where the plaintiff moved into the mobile home for over a year and attempted to repair the home by replacing the heating and air conditioning units. Id., at 606. See 67 A.L.R.3d 363, 385, § 7(a) (1975) which predicates the annotation upon Bowen v. Young, supra. We do not have the situation here where the buyer continued to occupy the home After giving notice of rejection as in Minsel v. El Rancho Mobile Home Center, Inc., 32 Mich.App. 10, 188 N.W.2d 9 (1971).

The notice envisioned by Tex.Bus. & Comm.Code § 2.602 must be clear and unambiguous. The evidence which is before us supports but one conclusion: There was no rejection within a reasonable time. Where reasonable minds cannot differ and only one conclusion can be drawn from the evidence, the question of acceptance is one for the court and not for the jury. Necho Coal Company v. Denise Coal Company, 387 Pa. 567, 128 A.2d 771, 773 (1957).

We hold that as a matter of law, plaintiffs did not seasonably reject the motor home and accepted it thereby. Accord: Bowen v. Young, supra; International Paper Co. v. Margrove, Inc., 75 Misc.2d 763, 348 N.Y.S.2d 916 (1973) (where a delay of five months was held to constitute acceptance); Robinson v. Jonathan Logan Financial, 277 A.2d 115 (D.C.App.1971) (which held that a delay of six months was acceptance); Necho Coal Company v. Denise Coal Company, supra (which ruled that a nine months' delay was acceptance as a matter of law).

Where there is an acceptance, plaintiffs are relegated to recover on the theory of 'damages'. Hendricks v. Moore, 156 Tex. 570, 297 S .W.2d 811, 813 (1957). As previously mentioned, there was no pleading for 'damages' by plaintiffs. Plaintiffs may therefore not recover upon the sole theory of restitution.

Defendant's Point of Error 5 is sustained.

By Points of Error 17 and 18, defendant claims that there is insufficient evidence to support the jury's finding that no dollar value could be placed upon the use and enjoyment of the motor home by the plaintiffs, and that such finding is against the great weight and preponderance of the evidence.

There was much testimony that the home was poorly constructed and unfit for the purpose for which it was designed and sold. The july found this to be the case. But, we...