Newmaster v. Southeast Equipment, Inc., 53460

• Decision Date: 11 June 1982
• Docket Number: No. 53460,53460
• Citation: 646 P.2d 488,231 Kan. 466
• Parties: , 34 UCC Rep.Serv. 160 Fred L. NEWMASTER, Appellee, v. SOUTHEAST EQUIPMENT, INC., Appellant.
• Court: Kansas Supreme Court

Page 488

646 P.2d 488

231 Kan. 466, 34 UCC Rep.Serv. 160

Fred L. NEWMASTER, Appellee, v. SOUTHEAST EQUIPMENT, INC., Appellant.

No. 53460.

Supreme Court of Kansas.

June 11, 1982.

Syllabus by the Court

1. The purchaser of a machine who seeks revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the machine to the needs and circumstances of the purchaser when purchase was made, (2) that such nonconformity in fact substantially impaired the value of the machine to the purchaser, and (3) that the purchaser accepted the machine under circumstances which bring him within either paragraph (1)(a ), reasonable assumption of cure, or paragraph (1)(b ), difficulty of discovery.

2. Revocation of acceptance is possible only when the nonconformity substantially impairs the value of the machine to the buyer.

3. Notification of revocation of acceptance must be accomplished within a reasonable time after discovery of the grounds for such revocation.

4. The buyer may not revoke his acceptance if the machine has materially deteriorated while in the hands of the buyer, except when deterioration has occurred by reason of defects inherent in the machine.

5. In an action brought by the purchaser of a piece of farm machinery against the seller to revoke the purchaser's acceptance under terms authorized by K.S.A. 84-2-608, the record is examined and it is held that the findings of the trial court, as trier of the facts, were sufficient to justify revocation of acceptance and to support a judgment for the purchase price paid.

Kurtis I. Loy, of Loy & Loy, Pittsburg, argued the cause and was on the brief for appellant.

David K. Markham, Parsons, argued the cause, and John B. Markham, Parsons, was with him on the brief for appellee.

FROMME, Justice:

This action was filed to obtain a revocation of acceptance under terms authorized by K.S.A. 84-2-608 and a judgment for the amount of the purchase price. The case was tried to the court, revocation of acceptance was decreed, and judgment in favor of the plaintiff and against the defendant was entered in the sum of $4,120.00 plus costs.

K.S.A. 84-2-608 reads:

"(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

"(a ) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

"(b ) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

"(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

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

A "commercial unit" as used in the above statute is defined in K.S.A. 84-2-105(6) as follows:

" 'Commercial unit' means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole."

Under the provisions of these statutes this court held in McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, Syl. P 1, 561 P.2d 832 (1977):

"The purchaser of a motor vehicle who seeks to enforce a revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the vehicle, (2) the needs and circumstances of the purchaser, and (3) that the nonconformity in fact substantially impairs the value of the vehicle to the purchaser."

Revocation of acceptance is a remedy which allows a buyer to get rid of defective goods by returning them to the seller. Revocation, however, occurs at a later stage of the sales contract: after acceptance. Also, while a buyer may nominally reject for any defect, he or she may revoke acceptance only when the nonconformity is substantial. Rasor, Kansas Law of Sales § 10-3 (1981).

Under the terms of section 84-2-608 at paragraph (1), revocation of acceptance is possible only when the nonconformity substantially impairs the value of the machine to the buyer.

Under paragraph (2) of 84-2-608 notification of revocation of acceptance must be accomplished within a reasonable time after discovery of the grounds for such revocation, and the buyer may not revoke his acceptance if the machine has materially deteriorated while in the hands of the buyer except when deterioration has occurred by reason of defects inherent in the machine. See the official UCC Comment following the statute, paragraphs 4 and 6.

Under the provisions of this section the buyer must also have accepted the goods under circumstances which bring him within either paragraph (1)(a ), reasonable assumption of cure, or paragraph (1)(b ), difficulty of discovery.

In other words the purchaser of a machine who seeks revocation of acceptance pursuant to K.S.A. 84-2-608 must establish (1) the nonconformity of the machine to the needs and circumstances of the purchaser when purchase was made, (2) that such nonconformity in fact substantially impaired the value of the machine to the purchaser, and (3) that the purchaser accepted the machine under circumstances which bring him within either paragraph (1)(a ), reasonable assumption of cure, or paragraph (1)(b ), difficulty of discovery.

The trial court heard the evidence in this case and made complete findings of fact from which the following facts were gleaned:

The plaintiff, Fred L. Newmaster, now 79 years of age, did on or about April 28, 1978, purchase a John Deere Powr-Till Seeder from the defendant, Southeast Equipment Company, Inc., for the sum of $4,000.00 plus sales tax of $120.00. Such a tiller is designed to break the soil with spiked wheels and drop the seed into the soil in one operation. This was what Mr. Newmaster perceived as the machine's desirable quality since it eliminated passing over the field with a disc to break the soil and then passing over it again with a conventional seed drill, saving topsoil and fuel. Mr. Newmaster intended to use the machine to sow sudan grass seed.

Mr. Newmaster dealt with Stan Gavin, an owner of Southeast Equipment, Inc., during and after the purchase. Mr. Newmaster requested delivery, and delivery of the machine was made on May 15, 1978. The machine was new but had been demonstrated for less than an hour for another potential purchaser. These facts were related to plaintiff by Mr. Gavin and the plaintiff was advised that the warranty would be in effect from the date of delivery.

Plaintiff took delivery of the Powr-Till Seeder and he and his son, Paul Newmaster, tried it near plaintiff's home. They loaded it with sudan grass seed and pulled it with Mr. Newmaster's tractor for a short distance. After pulling the Powr-Till Seeder for approximately 40 feet, plaintiff got down and looked for the sudan grass seed in the furrows. Mr. Newmaster and son, Paul, both concurred and the trial court found that there was an insufficient number of seeds deposited by the machine per foot to secure a proper crop....