Miles v. Kavanaugh
| Decision Date | 27 September 1977 |
| Docket Number | Nos. 76-478 and 76-510,s. 76-478 and 76-510 |
| Citation | 350 So.2d 1090 |
| Court | Florida District Court of Appeals |
| Parties | 22 UCC Rep.Serv. 911 Edward MILES, Richard W. Keenan and Kenneth L. "Dusty" Burrow, Appellants, v. John F. KAVANAUGH, Appellee. |
Sawyer & Dunn, Edward C. Vining, Jr. and Richard A. Burt, Merlin & Horowitz and Gary Kalos, Miami, for appellants.
Manners & Amoon, Miami, for appellee.
Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
This is an action for breach of express warranty and misrepresentation in the sale of an airplane. Judgment was rendered for the plaintiff-buyer and the seller-defendant appeals. Party defendants responsible for repairing the airplane prior to the sale also appeal. We affirm.
In March, 1973, the plaintiff (John Kavanaugh) answered a newspaper ad placed by the defendant (Richard Keenan) advertising the sale of a used 1956 Cessna 172 private airplane. The plaintiff and defendant Keenan met on several occasions to examine the airplane and to discuss the sale. The defendant Keenan stated that the engine in the airplane had recently been completely overhauled during which time a number of new mechanical parts had been placed in the engine. The defendant Keenan gave the plaintiff an engine and propeller logbook detailing the mechanical repair and flight history of the airplane which the plaintiff carefully inspected.
The logbook reflected that on May 16, 1972, the engine had been given a major overhaul in which new mechanical parts were placed in the engine all in conformity with the manufacturer's engine overhaul manual. The repair work had been done by the defendant (Kenneth L. "Dusty" Burrow) whose work was certified in the logbook by the defendant F.A.A. inspector (Edward Miles). Based on the accuracy of this information, the plaintiff purchased the airplane from the defendant Keenan. The plaintiff specifically testified that he would not have purchased the airplane had he not been able to inspect and rely upon the information contained in the logbook.
The plaintiff flew the airplane without incident for several months. Thereafter, he experienced a harrowing engine malfunction while the airplane was in flight. On December 5, 1973, he took off from a narrow airstrip in the Everglades approximately fifty miles out of Miami. After takeoff, the engine began to lose power, shake violently and emit a loud clanking sound. The plaintiff was barely able to land on the Everglades airstrip without crashing.
Subsequent thereto, the plaintiff had to arrange at considerable expense for the airplane to be transported in parts to an aircraft repair shop and there completely re-overhauled. It was there discovered that the prior overhaul had not included new parts as represented and that the prior overhaul had been performed in a completely defective manner. All parties to this appeal agree that the logbook contained inaccurate, misleading and false information about the prior repair history of the airplane.
The plaintiff paid approximately $350 to transport the airplane from the Everglades for repairs and $5,700 for the re-overhaul job. In addition, the plaintiff estimated his loss of use of the airplane during this repair period to be $600.
The plaintiff sued the defendant Keenan and the defendants Burrow and Miles for breach of express warranty and misrepresentation. After a non-jury trial, the court awarded a judgment in favor of the plaintiff against all defendants in the amount of $5,800. The defendant Keenan appeals questioning his liability on the sale of the airplane as well as the amount of damages awarded. The defendants Burrow and Miles appeal solely on the damages issue.
The first issue presented by this appeal is whether a private party, who sells his used airplane to a buyer and to induce the sale shows the buyer an engine and propeller logbook setting forth the repair history of the airplane, expressly warrants the accuracy of the information contained in the logbook within the meaning of Florida's Uniform Commercial Code, Section 672.313, Florida Statutes (1975). We hold that the seller expressly so warrants the accuracy of the information contained in the logbook where it forms part of the basis of the bargain between the parties.
The controlling law in this case is set forth at Section 672.313, Florida Statutes (1975), as follows:
"672.313 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 which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (Emphasis added.)
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. " (Emphasis added.)
The official comments of the above provision of Florida's Uniform Commercial Code is instructive on the issue presented in this case and state in part as follows:
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