Pelletier v. Brown Bros. Chevrolet & Oldsmobile, Inc.

• Decision Date: 06 October 1956
• Citation: 7 Misc.2d 962,164 N.Y.S.2d 249
• Parties: Henry J. PELLETIER, Plaintiff, v. BROWN BROS. CHEVROLET & OLDSMOBILE, Inc. and Chevrolet Motor Division of General Motors Corporation, Defendant.
• Court: New York Supreme Court

Page 249

164 N.Y.S.2d 249

Henry J. PELLETIER, Plaintiff, v. BROWN BROS. CHEVROLET & OLDSMOBILE, Inc. and Chevrolet Motor

Division of General Motors Corporation, Defendant.

Supreme Court, Herkimer County.

Oct. 6, 1956.

Albert L. Lawrence, Herkimer, for plaintiff.

Ferris, Hughes, Dorrance & Groben, Utica, John M. Liddy, Utica, of counsel, for defendant, Chevrolet Motor Division of General Motors Corp.

HUDSON, Justice.

This is a motion pursuant to Rule 106 of the Rules of Civil Practice to dismiss the complaint upon the ground that the same fails to state facts sufficient to constitute a cause of action against the defendant, Chevrolet Motor Division of General Motors Corporation. For the purposes of this motion the allegations of the complaint must be accepted as true. Dyer v. Broadway Central Bank, 252 N.Y. 430, 169 N.E. 635.

Paragraph 8 of the complaint reads as follows:

'That attached hereto, marked 'Schedule B', and made a part hereof as if fully and at length set forth herein, is a copy of the order placed by Henry J. Pelletier with Brown Bros Chevrolet & Oldsmobile, Inc. for said truck on May 26, 1954, said 'Schedule B' at Item 7 on the reverse side thereof stating the warranties to purchaser and this plaintiff concerning the purchase of said vehicle.'

Upon an examination of 'Schedule B' referred to in paragraph 8 of the complaint of which 'Schedule B' is a part, it will be seen that such schedule consists of an order blank at the top of which appears the usual Chevrolet Trade Mark. The dealer's name is left blank both at the top of the order blank and in the space at the bottom thereof designated for the dealer's acceptance. At no place on the blank is there any printing indicating that the defendant, Brown Bros. Chevrolet & Oldsmobile, Inc., issued the order blank as a part of its regular business operations. The distinction is quite apparent from an examination of 'Schedule A', which is also annexed to and made a part of the complaint. 'Schedule A' is an invoice upon stationery obviously used in the regular course of business of the defendant, Brown Bros. Chevrolet & Oldsmobile, Inc. At the bottom of the order blank and above the line provided for the purchaser's signature appears the following significant statement:

'I have read the matter on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. The front and back hereof comprise the entire agreement affecting this order and no other agreement or understanding of any nature concerning same has been made or entered into.'

On the back of 'Schedule B' the following references to the Chevrolet Motors Division of the General Motors Corporation appear:

'1. Chevrolet Motor Division--General Motors Corporation has reserved the right to change the list price of new Chevrolet Motor Vehicles without notice.

'4. Chevrolet Motor Division--General Motors Corporation has the right to make any changes in the model or design of any accessories and parts of any new Chevrolet Motor Vehicle at any time without creating any obligation on the part of either the dealer or Chevrolet Motor Division--General Motors Corporation to make corresponding changes in the car covered by this order either before or subsequent to the delivery of such car to the purchaser.

'7. It is expressly agreed that there are no warranties expressed or implied made by either the Dealer or the Manufacturer on the Chevrolet Motor vehicles, chassis or parts furnished hereunder, except the Manufacturer's warranty against defective materials or workmanship, as follows: * * *

"This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an Authorized Chevrolet Service Station in any way so as in the judgment of the Manufacturer to affect its stability and reliability * * *

"The Dealer agrees to install any part or parts furnished under the Manufacturer's warranty above on the motor vehicle covered in this order without charge to the owner of such motor vehicles. * * *"

There appears at the top of the reverse side of 'Schedule B', referring to the terms and conditions therein set forth, including those above specifically enumerated, the following:

'It is further understood and agreed:

'The order on the reverse side hereof is subject to the following terms and conditions which have been mutually agreed upon:'

It is the contention of the defendant, Chevrolet Motor Division--General Motors Corporation, that there is no allegation in the complaint under which the plaintiff can prove any warranties were made directly to the plaintiff by the defendant, Chevrolet Division--General Motors Corporation and, therefore, neither privity of contract nor contractual relationship exists between the parties. Such defendant further contends that there are...