Marshall v. Murray Oldsmobile Co.
| Decision Date | 24 April 1967 |
| Citation | 207 Va. 972,154 S.E.2d 140 |
| Parties | , 4 UCC Rep.Serv. 172 William J. MARSHALL, Jr. v. MURRAY OLDSMOBILE COMPANY, Incorporated. |
| Court | Virginia Supreme Court |
James B. Wilkinson, Richmond (Cutchins, Wallinger, Christian & Wilkinson, Richmond, on brief), for appellant.
John T. Wingo, Robert N. Pollard, Jr., Richmond (Williams, Mullen & Christian, Richmond, on brief), for appellee.
Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
By bill of complaint filed in the trial court, William J. Marshall, Jr., the complainant, sought the rescission of a contract whereby he purchased from Murray Oldsmobile Company, Incorporated, the defendant, a 1962 F--85 Jetfire Oldsmobile. The bill alleged that the defendant had expressly warranted that the automobile was free from defects in material and workmanship and had impliedly warranted that it 'would fit the purpose for which it was sold'; that the vehicle was 'inoperable and worthless' because of defective conditions therein; that the defendant had failed to correct the defects; that the complainant had returned the car to the defendant; and that the complainant was entitled to recover the purchase price of $3,633.70.
The defendant filed an answer alleging that it had furnished the complainant a 'New Car Warranty' in writing, warranting that the vehicle was free from defects in material and workmanship, but asserting that it had fulfilled its obligations under that warranty. The defendant further alleged that the written warranty given the complainant provided that there were no warranties, express or implied, other than the 'New Car Warranty' and that the written warranty was 'in lieu of all other warranties, expressed or implied and all other obligations or liabilities on Dealer's part.'
The cause was heard upon depositions. The trial court, in its final decree, ruled that the complainant was 'not entitled to the relief prayed for in the Bill of Complaint,' and dismissed the bill. The complainant was granted an appeal.
The evidence shows that the complainant purchased the automobile in dispute from the defendant on September 24, 1962. The vehicle was a demonstrator and had been operated 3,600 miles at the time of purchase. The complainant bought the automobile as 'a family car.'
The vehicle 'operated very well' until October 29, 1962. On that date, the complainant attempted to start the car, and 'the starter acted as if the starter motor were locked up.' When the vehicle did start, 'the engine had a miss in it, it had a slight knock in it.' The complainant drove the car to the defendant's repair shop and told the defendant's employee, 'just fix it.'
The defendant kept the vehicle in its shop for several weeks while attempting to locate and repair the trouble in the engine. Finally, a factory representative was called in, and he discovered that the difficulty was in an assembly which metered 'rocket fuel' into the carburetor. The defect was repaired, and the vehicle was returned to the complainant.
On November 20, 1962, the complainant again delivered the vehicle to the defendant for repairs. On that occasion, the defendant installed a plug in the choke housing, repaired the gas gauge, and adjusted a door glass. On December 4, 1962, the complainant presented the automobile to the defendant for repairs to the speedometer.
On February 23, 1963, the complainant delivered the vehicle to the defendant for repairs to the transmission, with which he had experienced difficulty. Repairs were made, and the vehicle was returned to the complainant. When he was not satisfied with the performance of the transmission, an employee of the defendant told him 'to drive it a while, and see if it wouldn't get better.'
On March 30, 1963, while the vehicle was being operated by a Mrs. Previs, to whom it had been loaned by the complainant, the transmission 'just quit.' The complainant towed the car to the defendant's garage and told the defendant not to repair it, that he was 'rescinding the sale of the automobile.'
When the vehicle was finally returned to the defendant, it had been operated 8,331 miles by the complainant. The complainant retained a key to the vehicle and did not tender the certificate of title to the defendant until March 19, 1964. Thereafter, the parties entered into an agreement, without prejudice to the rights of either, that the vehicle should be sold 'if an agreeable price can be obtained.'
During the course of the proceedings in the court below, the defendant, with the consent of the complainant and pursuant to an order of court, disassembled the transmission and found therein only a minor defect, which was repaired at a cost of $12.00. The retail price of the earlier repairs performed by the defendant totaled $456.55. All repairs were done without cost to the complainant, under the terms of the 'New Car Warranty.'
The 'New Car Warranty' furnished the complainant by the defendant is set out in full in the margin. 1 At the outset of our discussion, it should be noted that the complainant does not rely upon a breach of the 'New Car Warranty' as a ground for his asserted right to rescind the contract. Instead, he relies solely upon a breach of an alleged implied warranty of fitness, stating that his case 'rises or falls on whether there was an implied warranty of fitness for the purpose for which (the automobile) was sold, that is, as a family car.' The narrow question to be decided, then, is whether such an implied warranty existed.
The complainant insists that there was an implied warranty of fitness attached to the sale of the automobile, notwithstanding the exclusionary language of the written warranty. He says that this court has held that a warranty of fitness may be implied in the face of an express warranty disclaiming the existence of such an implied warranty. In any event, the complainant argues, the exclusionary provisions of the express warranty are void for 'overriding reasons of public policy.'
The complainant relies upon our decision in Greenland Development Corp. v. Allied, Etc., Co., 184 Va. 588, 35 S.E.2d 801, 164 A.L.R. 1312, as authority for his contention that he is entitled to the benefit of an implied warranty of fitness despite the existence of the express warranty. In that case, furnaces sold by the defendant to the plaintiff did not perform satisfactorily; and the plaintiff brought action to recover damages for breach of warranties, both express and implied. The express warranty was that the materials furnished by the defendant were guaranteed 'for one year against defective material and workmanship.' The defendant contended that no warranty of fitness could be implied in view of the existence of the express warranty.
We held that an implied warranty of fitness and suitableness attached to the sale of the furnaces because 'the express warranty in the written order is in no wise inconsistent with the implied warranty,' thus adopting the rule set forth in 1 Williston on Sales, 2d Ed., sec. 239, pp. 473--474.
Likewise, in E. I. duPont de Nemours & Co. v. Universal Moulded Prod. Corp., 191 Va. 525, 62 S.E.2d 233, a warranty of fitness was implied in the sale of paint products carrying an express awarranty of uniformity of quality and ingredients, this court stating that there was nothing inconsistent between the implied and express warranties, but that 'the two warranties were complementary rather than conflicting.' 191 Va., at p. 566, 62 S.E.2d at p. 252.
The complainant's reliance upon the two cases just discussed is misplaced. In neither of the cases was there any language in the express warranty disclaiming the existence of an implied warranty of fitness. The rationale of those earlier decisions was that since there was no inconsistency between the express warranty and an implied warranty of fitness, the latter warranty should attach just as it ordinarily would in the absence of an express warranty. There is nothing in either case which would indicate any inclination on the part of this court to hold that parties to a sale cannot negate the existence of an implied warranty of fitness. To the contrary, in the Greenland opinion, there is a reference to the case of Ford Motor Co. v. Switzer, 140 Va. 383, 125 S.E. 209, where we held the purchaser of an automobile to be limited to the terms of an express warranty. The Greenland opinion distinguishes the Switzer case by saying:
'But there the contract expressly provided that the written warranty was 'in lieu of all other warranties expressed or implied,' and the lower court had instructed the jury, without objection, that the written warranty was the measure of the rights and liabilities of both parties.' 184 Va., at p. 597, 35 S.E.2d at p. 805.
So too, here, the defendant's express warranty, in language which admits of no uncertainty or ambiguity, excluded the existence of any implied warranty of fitness. No greater inconsistency could be conceived than to imply a warranty of fitness where the clear language of an express warranty says that none shall exist. To ignore that inconsistency and imply a warranty of fitness would be to make a new contract for the parties. That the court cannot and will not do.
We conclude that the provisions of the express warranty did exclude the existence of an implied warranty of fitness of the...
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