Minsel v. El Rancho Mobile Home Center, Inc., Docket No. 9558

• Decision Date: 26 March 1971
• Docket Number: No. 3,Docket No. 9558,3
• Citation: 188 N.W.2d 9,32 Mich.App. 10
• Parties: , 9 UCC Rep.Serv. 448 Peter E. MINSEL and Linda J. Minsel, Plaintiffs-Appellees, v. EL RANCHO MOBILE HOME CENTER, INC., a Michigan corporation, Defendant-Appellant, and Hampton Homes, Inc., a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 9

188 N.W.2d 9

32 Mich.App. 10, 9 UCC Rep.Serv. 448

Peter E. MINSEL and Linda J. Minsel, Plaintiffs-Appellees, v. EL RANCHO MOBILE HOME CENTER, INC., a Michigan corporation Defendant-Appellant and Hampton Homes, Inc., a Michigan corporation, Defendant-Appellee.

Docket No. 9558.

Court of Appeals of Michigan, Division No. 3.

March 26, 1971.

Released for Publication July 2, 1971.

Thomas J. McNamara, Warner, Norcross & Judd, Grand Rapids, for El Rancho Mobile Home Center.

John Oosterbaan, Jr., Howard & Howard, Kalamazoo, for Hampton Homes, inc.

L. W. Gray, Stanley, Devidoff, Long & Gray, Kalamazoo, for Minsel.

Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.

FITZGERALD, Presiding Judge.

Plaintiffs Peter E. Minsel and his wife, Linda J. Minsel, brought action on September 30, 1968, against El Rancho Mobile Home Center, Inc., and Hampton Homes, Inc., both Michigan corporations. Plaintiffs sought rescission of a contract with El Rancho for the purchase of a mobile home which was manufactured by codefendant Hampton Homes, as well as restitution of amounts paid under the contract, plus incidental damages and court costs.

Plaintiffs purchased their mobile home on July 16, 1968. The agreed price was $7,700 plus $1,025 for such extras as an air conditioner, a skirt, and an awning, which in turn increased the total price to $8,725. On July 23, 1968, plaintiffs paid El Rancho Mobile Homes a down payment of $2,784 and arrangements were made for delivery of the trailer to a lot rented by plaintiffs in Grand Rapids. Defendant delivered the mobile home on July 26 or 27, 1968, and plaintiffs actually moved into it on or about July 28, 1968. As a result of the company's failure to properly remedy numerous defects, plaintiffs tendered notice of their intent to rescind the contract on September 11, 1968. At this time the Minsels decided to move out of the trailer, but encountered considerable difficulty in finding another place to live. When they finally found a suitable apartment, they were forced to wait until November 1 before they could move in. Hence, they remained in the mobile home approximately six weeks after having tendered it back to defendant.

Upon vacating the mobile home, plaintiffs throughly cleaned it, continued to look after it, and paid rent and utilities on the lot until sometime in February 1969, when defendant finally removed it. Subsequent to notice, which was tendered in September, defendant did not offer to cure defects or tender the mobile home back to plaintiffs. Plaintiffs were granted the relief for which they prayed.

We shall now address ourselves to a consideration of whether the acts and conduct of plaintiffs subsequent to their notice of rescission negated any later claim of revocation of acceptance of nonconforming goods as set forth in the Uniform Commercial Code. ¹ Defendants contend that it is an undisputed fact that plaintiffs retained possession and continued to use the mobile home as their domicile fully six weeks after having mailed the September 10 letter of rejection which was inconsistent with their alleged rejection and as such constituted a wrongful exercise of ownership by the buyer; hence, the defendants claim that they may treat such continued use as an acceptance. Therefore, the narrow issue becomes one of construction, more precisely, whether plaintiffs adhered to the requirements set forth in M.C.L.A. § 440.2608 (Stat.Ann.1964 Rev. § 19.2608), at the time of revoking their acceptance. The statute reads as follows:

'(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it.'

This position is qualified in M.C.L.A. § 440.2608(3) (Stat.Ann.1964 Rev. § 19.2608(3)), which states:

'(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.'

Specifically, the above statute points to M.C.L.A. § 440.2602(2)(a) (Stat.Ann.1964 Rev. § 19.2602(2)(a)), for an appropriate standard:

'(a) After rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller.'

An examination of the U.C.C. as enacted in Michigan reveals M.C.L.A. § 440.1102 (Stat.Ann.1964 Rev. § 19.1102), which deals with the construction of the act and its purposes. In section 1102(1) of the statute, it is stated that: 'This act shall be liberally construed and applied to promote its underlying purposes and policies.' One of these purposes is to 'modernize the law governing commercial transactions'. ² With these facts in mind, we proceed to the determination of whether plaintiffs' actions can be reasonably construed as a continued exercise of ownership of the goods at issue.

An examination of the record discloses that the plaintiffs continued to live in the mobile home for approximately six weeks after tendering their letter of rejection on September 10, 1968. From the time of rejection they were under a duty to protect and care for the goods of the seller for a reasonable period. As stated in M.C.L.A. § 440.2602(2)(b) (Stat.Ann.1964 Rev. § 19.2602(2)(b...