Pedrini v. Mid-City Trailer Depot, Inc.

• Decision Date: 03 October 1969
• Docket Number: MID-CITY,No. 50--40349--I,50--40349--I
• Citation: 459 P.2d 76,1 Wn.App. 56
• Parties: Charles V. PEDRINI and Ermina Pedrini, his wife, Respondents, v.TRAILER DEPOT, INC., Appellant.
• Court: Washington Court of Appeals

Page 56

1 Wn.App. 56

459 P.2d 76

Charles V. PEDRINI and Ermina Pedrini, his wife, Respondents, v. MID-CITY TRAILER DEPOT, INC., Appellant.

No. 50--40349--I.

Court of Appeals of Washington, Division 1.

Oct. 3, 1969.

Rutherford, Kargianis & Austin, George Kargianis, Seattle, for appellant.

Beckman, Kuvara & Gooding, Robert Kuvara, Kent, for respondents.

JAMES, Chief Judge.

Plaintiffs Pedrinis purchased a new mobile home from defendant Mid-City Trailer Depot, Inc. on February 16, 1961. They paid the total purchase price, in excess of $5,000, by way of cash, the trade-in of the older mobile home in which they lived, and a promissory note for $138.05. By this action the Pedrinis seek to rescind the sale. The trial was without a jury. Rescission was granted. Mid-City appeals.

Mid-City delivered the mobile home to the Pedrinis' residence address in a mobile home park. Shortly after delivery, Pedrinis noticed a number of defects. In his oral opinion, the trial judge found the essential facts to be these: the roof leaked badly and was beyond repair; the side was caved in; the stove was stripped of parts; a bedspread was missing; the mattress was wet; the bumper was dented and chipped; and the doors, one of which was partly caved in, did not close properly. The trial judge characterized these findings as substantial defects rendering the mobile home unsuitable for its intended use.

The judge further found that the Pedrinis promptly notified Mid-City of their discovery of the defects and asked for a refund of the consideration given or for a new undamaged mobile home. Mid-City refused this request but assured the Pedrinis that the mobile home would be repaired to their satisfaction or that Mid-City would take the home back--but at its dealer cost--if the Pedrinis insisted upon rescission. This offer the Pedrinis declined, but they agreed to permit Mid-City to undertake repairs.

The trial judge found that Mid-City's attempts at repair were half-hearted and unsatisfactory; that Mid-City stalled and deliberately avoided the Pedrinis. The Pedrinis continued to occupy the mobile home and attempted to cope with the problems created by the leaking roof and windows. They covered the roof with a plastic sheet but could not keep the home free of water. The Pedrinis persistently tried to reach Mid-City to obtain satisfaction.

In September, some seven months after the sale, the Pedrinis employed counsel. This action was commenced in November. The trial judge concluded that the Pedrinis were entitled to rescind the sale as of the date of purchase. He awarded the Pedrinis judgment for the full purchase price, together with interest to the date of trial. The trial judge concluded that under the circumstances of the case, the Pedrinis' occupancy of the mobile home did not constitute a waiver of their right to rescind and that they became bailees of the home upon Mid-City's refusal to take it back.

In this appeal, Mid-City is represented by counsel substituted after trial.

Mid-City's assignments of error present four questions.

One. Does the evidence support the trial judge's findings that the defects in the mobile home were substantial and that the roof was unrepairable? The findings are supported by ample evidence and will not be disturbed. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959); John R. Hansen, Inc. v. Pacific Int'l Corp., 76 Wash.Dec.2d 219,455 P.2d 946 (1969).

Two. Did the Pedrinis waive their right to rescind by continuing to occupy the mobile home? One who seeks to rescind a sale must act promptly, but this requirement of promptness is tempered with reasonable exceptions. The rule in Washington is stated in Lester v. Percy, 58 Wash.2d 501, 503, 364 P.2d 423, 424 (1961). Respondent contends that the rule in this state is that one who seeks to rescind a contract upon the ground of breach of warranty must do so promptly upon discovery of the breach, otherwise the right to rescind is waived. We agree with respondent's statement of the general rule, but it is subject to certain exceptions, two of which are (1) the waiver must be voluntary and intentional, and (2) the right to rescind is not waived when the delay in claiming it is induced by the vendor.

This court has recognized these exceptions to the general rule in the following decisions:

In Birkeland v. Corbett, 51 Wash.2d 554, 565, 320 P.2d 635, 642 (1958), we said:

'A 'waiver' is the intentional and voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. The person against whom a waiver is claimed must have intended to relinquish the right, advantage, or benefit, and his actions must be...