Foley v. Dayton Bank & Trust

• Citation: 42 UCCRep.Serv. 92,696 S.W.2d 356
• Parties: Marvin A. FOLEY, William E. Ball, III, and Johanna M. Foley, Plaintiffs- Appellants, v. DAYTON BANK & TRUST and Homer Mayfield, Defendants-Appellees. 696 S.W.2d 356, 42 UCC Rep.Serv. 92
• Decision Date: 27 March 1985
• Court: Court of Appeals of Tennessee

Page 356

696 S.W.2d 356

Marvin A. FOLEY, William E. Ball, III, and Johanna M.

Foley, Plaintiffs- Appellants, v. DAYTON BANK & TRUST and Homer Mayfield, Defendants-Appellees.

696 S.W.2d 356, 42 UCC Rep.Serv. 92

Court of Appeals of Tennessee,

Western Section, at

Knoxville.

March 27, 1985.

Application for Permission to Appeal

Denied June 3, 1985.

William H. Hall, Chattanooga, for plaintiffs-appellants.

C.P. Swafford, Dayton, for defendant-appellees.

CRAWFORD, Judge.

In this non-jury case, plaintiffs, Marvin A. Foley, William E. Ball, III, and Johanna M. Foley, buyers of a used truck from defendant, Dayton Bank and Trust, appeal from the order of the Chancery Court dismissing their suit to rescind the transaction. Plaintiffs' complaint alleges in substance that they purchased a 1977 International Transtar II truck from Dayton; that Mayfield, the representative of the bank handling the transaction, "stated emphatically that the motor vehicle was 'in good mechanical condition' and in particular assured the plaintiff the engine in the vehicle was in excellent condition at the time of the purchase;" and that plaintiff relied on Mayfield's representation and expended large sums to prepare the vehicle for its proposed use. The complaint further avers that the vehicle broke down as the result of engine trouble after less than 250 miles of operation, thus substantially impairing the vehicle's value, and that repairing the engine would require the expenditure of at least $6,400. Plaintiffs' complaint states that they rightfully revoked acceptance and now seek the return of all monies paid plus other described damages. The complaint further avers that the bank knew plaintiffs were to use the vehicle for a particular purpose, that there was an implied warranty for fitness for a particular purpose as provided by T.C.A. Sec. 47-2-315, and that this warranty was breached.

Defendants' answer denies the material allegations of the complaint and joins issue thereon, specifically denying that there was any express representation or warranty as alleged in the complaint.

After hearing the proof the trial court held that plaintiffs had failed to prove the allegations of the complaint and dismissed their case. Plaintiffs have presented two issues for review by this court.

Issue No. 1 is:

The trial court erred in failing to find that defendants gave an express warranty as to the condition and quality of the engine.

Plaintiffs' brief asserts that the evidence at trial "preponderates in favor of a finding that the defendants made an express warranty as to the condition and quality of the engine," and that the chancellor erred in not making such a finding.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings we must affirm absent error of law. T.R.A.P. 13(d).

The record reflects that the bank had previously financed the large trailer-type truck in question and had acquired title thereto after repossession pursuant to its financing papers. The truck had been on the defendant's lot for several months prior to its purchase by plaintiffs. It was eight years old and had been driven approximately 447,161 miles. Although the defendant bank engaged in the business of financing automobiles and related-type motor vehicles, it did not normally finance trucks of this type.

The evidence before the court specifically relating to this issue consists of the testimony of plaintiff, Marvin A. Foley, and defendant, Homer Mayfield. Foley testified that during negotiations for the purchase of the truck he specifically asked defendant Mayfield about the engine's condition and Mayfield said to him, "I assure you there is nothing wrong with the engine." Mayfield, on the other hand, denied making such a statement and testified that, "I told him to the best of my knowledge it was in good condition because it just came in off a run to California." Faced with these conflicting statements, the chancellor apparently decided that Mayfield's version of the conversation was the more likely of the two. In making this decision, the chancellor had the benefit of his personal observation of the manner and demeanor of the witnesses as they testified and obviously his decision as to which version of the conversation was correct was largely dependent upon the credibility of these witnesses. Any conflict in testimony requiring a determination of the credibility of witnesses rests in the first instance with the trial court and will be given great weight by the appellate court unless other real evidence compels a contrary conclusion. See State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 282, 435 S.W.2d 803, 807 (1968); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297 (Tenn.App.1984). We find no other real evidence to cause us to adopt a different version of the conversation.

Plaintiffs also take the position that even if Mayfield's version is the correct statement, this version was an express warranty which was breached by defendants when the engine failed.

T.C.A. Sec. 47-2-313 (1979) provides as follows:

Express warranties by affirmation, promise, description, sample.--(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer...