Marine Mart, Inc. v. Pearce, 5--5885

• Decision Date: 15 May 1972
• Docket Number: No. 5--5885,5--5885
• Citation: 480 S.W.2d 133,252 Ark. 601
• Court: Arkansas Supreme Court
• Parties: , 10 UCC Rep.Serv. 1047 MARINE MART, INC., Appellant, v. L. D. PEARCE, Appellee.

Page 133

480 S.W.2d 133

252 Ark. 601, 10 UCC Rep.Serv. 1047

MARINE MART, INC., Appellant, v. L. D. PEARCE, Appellee.

No. 5--5885.

Supreme Court of Arkansas.

May 15, 1972.

Jones, Gilbreath & Jones, Ft. Smith, for appellant.

Daily, West, Core & Coffman, Ft. Smith, for appellee.

HOLT, Justice.

The appellee brought this action to rescind a contract of sale for a motor boat. For reversal of the decree rescinding the contract, the appellant contends that the Chancellor erred because the appellee (buyer) refused to permit the appellant (seller) to make a 'conforming delivery' by making minor repairs; there was no rejection of the boat; and, further, there was an acceptance which precludes rescission.

On June 2, 1970, the appellant, a retail boat dealer, sold appellee a motor boat which was on display in appellant's showroom. However, the appellant's manager, Charles Robinson, then secured appellee's permission to deliver another boat which was stored in the warehouse. This agreement was upon the representation that the warehouse boat would be 'identical' to the one on display. It appears these were the only two boats in stock of the same make and model. It was agreed that the seller and model. It was agreed that the seller would deliver the uninspected warehouse boat to Lake Tenkiller, approximately 70 miles distant, since appellee had no facilities to transport the boat. It is appellee's position that the boat which was delivered was not 'identical' to the boat displayed in appellant's showroom. It is, also, appellee's contention that the condition of the boat when delivered required more than the making of minor repairs.

Appellee testified that on June 12, 1970, he went by appellant's business to ascertain if the boat had been delivered. Appellant's manager advised him that the boat had been delivered and was superficially damaged during delivery. Accoridng to Robinson, there was a storm 'coming up' at the time the boat was placed in appellee's rented stall and a strong wind caused the boat to come in contact with a barge (two large posts were protruding from this barge), resulting in the damage. Appellee went to the lake the next day and 'found the boat in a terrible condition. We (appellee and wife) spent that full day cleaning the boat. The bow section under the gasoline tank was full of water. The section in the engine compartment was full of water. The seats had been walked on, they were muddy; the top had been walked on, it had muddy footprints on it. We took the top off of the boat and got it out on the dock and tried to clean it. We spent all that day; we didn't even start the engine. We went back on June 14th, which was Sunday, and spent the full day that day, and didn't even start the engine. So we spent two days just trying to clean it up.'

He also found the following defects: 'The upholstery on the operator's seat, the back of the operator's seat was cut in three places, cuts which were about half an inch long. We found that the rail which holds the rubber bumper around the boat near the bow section was damaged badly, a section eight to ten inches long. We found that the dash, above the dash was scratched badly, apparently in installing the windshield. We took a look at the stern light that they had delivered with the boat and found that it wasn't working properly. The nut which fastens it on, the threads were stripped and wouldn't hold.' Appellee reported these deficiencies to Robinson the following Monday morning. Robinson agreed to make the necessary repairs the following Saturday, June 20. Appellee waited for him on that day and Robinson didn't appear. The first of the week the appellee again went to appellant's business and repeated his complaints to Robinson. At that time, he observed the boat that he had originally intended to purchase back on display in the showroom. The week before Robinson told him this particular boat had been sold; therefore, the damaged seat in the warehouse boat could not be replaced. Appellee proceeded to demonstrate to Robinson that the original showroom boat was free of the defects which existed on the warehouse boat which Robinson had delivered. 'It seemed to irritate him very badly. I had a list of things to go over with him. . . . Very obviously he was unhappy with me.' Robinson again agreed to meet him the following Saturday and 'we would go over these things and that he was going to make everything right.'

On that day, appellee waited from 1 p.m. to 4 p.m. at which time Robinson and his mechanic arrived and 'they proceeded to spread some repair material on the damages that had been done to the boat when he delivered it and we got into a discussion concerning the boat.' The defects and damages were discussed as well as the oil being low in the boat. Robinson offered to replace the rub rail and provide a 'slip cover' as a repair for the damaged vinyl upholstered seat. He did not offer to repair the dash. He and the mechanic applied a 'jell coat' bonding material to the exterior side of the boat which was damaged.

Appellee characterized the damage as 'holes' into the side of the fiber glass boat. Appellee, who had owned three boats and had 15 years experience in operating them, testified: 'I knew he couldn't repair the damage that he had done to the boat in carrying it over there, because you just can't repair a fiber glass boat properly. The finish can't be restored. The conversation was rather unpleasant. I asked him to take the boat back.' Robinson threatened to take legal action. 'The conversation was broken off by Robinson and his party taking a walk down to the dock looking at the other boats. They came back and checked the repair material, said it wasn't hard enough to sand down as yet, and they prepared to leave the dock, and was ready to go back to Fort Smith, and I told them not to come back.' This was about 5 p.m. It was appellee's testimony that they left on their own volition. Appellee further testified that Robinson never told him that if he could not repair the boat and 'satisfy all my complaints and if I were dissatisfied, he would replace the boat.' Appellee, also, testified that the damage to the metal rub rail was so extensive it indicated to him this damage had existed for some time because the outside rubber band was undamaged; and, therefore, it was not a boat identical to the showroom boat.

On July 14, or about two weeks after Robinson had been at the lake attempting repairs, appellee wrote one of the appellant's owners and outlined the defects in his boat and described the transactions which had occurred between him and Robinson. Approximately three weeks later, or on August 10, appellee received a reply to his letter, not from the addressee, but from Robinson. In that letter Robinson acknowledged the fact that damages to the outside of appellee's boat had occurred during delivery and noted that their offer to repair had met with a request 'to leave it alone.' The letter recited an offer by him to resolve the matter upon a request to him by appellee.

Also, on July 14, the appellee addressed a letter to the boat manufacturer about a 'warranty registration' for the boat and asked confirmation of the registration, inasmuch as he was not sure that their local dealer, the appellant, had reported the sale of the boat 'for purposes of warranty registration.' Appellee never received a reply to this request. Appellee also wrote the motor manufacturer on July 14 as to appellant's failure to provide him with an Operation and Maintenance Manual, a copy of the warranty, and a copy of the free 20 hour check-up certificate. Further, the serial number on the invoice did not correspond with the number on the boat which...