Reece v. Yeager Ford Sales, Inc., 12950
| Decision Date | 23 November 1971 |
| Docket Number | No. 12950,12950 |
| Citation | 155 W.Va. 453,184 S.E.2d 722 |
| Court | West Virginia Supreme Court |
| Parties | , 10 UCC Rep.Serv. 75 Clarence R. REECE v. YEAGER FORD SALES, INC., a corporation and Ford Motor Company, a corporation. |
Syllabus by the Court
1. 'Where a purchaser of chattels has right to rescind the contract, for breach of it, the breach must be in a material matter.' Point 2, syllabus, J. W. Ellison, Son and Co. v. Flat Top Grocery Co., 69 W.Va. 380, 71 S.E. 391.
2. Rescission of a contract of sale cannot be made by the buyer where the defects relied on for the rescission are minor defects and an offer is made by or on behalf of the seller to repair all of the defects complained of and the buyer refuses to accept such offer.
Grover C. Goode, Welch, for Yeager Ford Sales, Inc.
Camper & Watson, Wade T. Watson, Welch, for appellee.
This is an appeal by the Yeager Ford Sales, Inc. from a judgment of the Circuit Court of McDowell County which awarded $4,155 to the appellee, Clarence R. Reece, in an action by him to rescind a contract with Yeager for the sale of a 1968 LTD Ford Sedan and to recover the purchase price of the automobile. The appellee instituted this action on February 11, 1969, based on the grounds of breach of an express warranty and fraud on the part of Yeager and the Ford Motor Company, a co-defendant who filed a separate appeal with this Court. Yeager timely filed a motion to set aside the jury verdict and to enter judgment for it or to grant it a new trial, which motion was overruled and on March 30, 1970, this Court granted Yeager an appeal and supersedeas. The case was submitted for decision on arguments and briefs of the parties on September 28, 1971.
On July 5, 1968, the appellee, Clarence R. Reece, purchased a 1968 LTD Ford Sedan from Yeager Ford Sales, Inc. in Welch, West Virginia, for $4,155. Reece was allowed $1600 for the trade-in of his 1965 Mercury automobile and he arranged the financing of the car through the Bank of War which received the title to the automobile.
Reece had seen the car on the lot on July 3rd or 4th, 1968, and decided to buy it. The car had recently arrived at the dealer's place of business in Welch and still had road grime on it and was covered by plastic when Reece and his wife first saw it. The Reeces did not notice any defects in the car at the time of purchase. Mr. Reece told the salesman that he needed the car immediately because he was leaving the next day for Chicago. The car was washed and the Reeces took delivery of the car on the evening of July 5, 1968.
The Reeces left early the next morning for Chicago and did not notice any defects in the car until they arrived there. Mr. Reece stated that he noticed that the chrome moulding or trim around the rear window did not fit correctly. The Reeces returned home from Chicago on July 16, 1968, after driving the car some 1600 miles and then noticed some white speaks of paint on the car which was painted black. Mr. Reece also testified that he detected a sharp edge on the side of the right door which extended to the right fender, and some 'rolls' in the top of the car. He stated a panel on the dashboard had come off and that the catch on the passenger's side of the front seat had broken. No complaint was ever made about the motor or mechanical parts of the car.
On July 22 or 23, 1968, Mr. Reece returned the car to Yeager for repairs. He picked the car up the following evening and made no complaint or comment to anyone concerning the repairs to the car at that time. After the car was taken to Yeager and repairs had been made the car was driven to Tennessee on two occasions and it was also driven around McDowell County during which time it was driven about 1800 additional miles.
Mr. Reece claimed that the repairs were not properly made, and his wife telephoned an adjuster for the Ford Motor Company, Mr. Fenstermaker, who inspected the car at the Yeager lot on August 14, 1968. Mr. Fenstermaker told Mrs. Reece on August 14th that he would report her complaints to the Cincinnati office and a Ford representative would contact her. The Reeces claim they were never contacted until they called the Ford plant in Wayne, Michigan, on September 9, 1968, and arranged for an adjuster to come down and inspect the car. The adjuster, Lennie Myers, inspected the car at Reece's home at Coalwood, West Virginia, on September 18, 1968. Myers wrote down a list of complaints that Mrs. Reece pointed out to him and he stated that Ford Motor Company would pay for all of the repairs to the car free of charge to the Reeces. Mrs. Reece replied that she didn't know whether her husband would accept the offer to repair or not and stated that she thought her husband wanted a new car.
The defects were all of a minor nature common to new cars and witnesses for both parties stated it would only cost from $35 to $80 to repair them.
Mr. Reece had taken the car to the Elkhorn Ford Sales in Keystone and pointed out seven defects which the service manager, John Lawless, who testified in the case, said would cost about $77 to repair. The nine defects pointed out by Mrs. Reece to Lennie Myers was estimated to cost $80 to repair. J. R. Hall and Marshall Coleman, who inspected the car, stated it would cost about $35 or $40, while Otis Poole estimated it would cost about $60 to repair the defects.
On September 19, 1968, Mr. Reece consulted an attorney who advised him to have the defects of the car listed by another Ford dealer and then to leave his car at Yeager Ford Sales and demand that Yeager return his purchase money. Reece followed his attorney's advice and after having the car inspected at the Elkhorn Motors, as indicated above, he drove the car to Yeager's lot, left it and asked an employee of Yeager to refund to him the purchase price of the automobile, which the employee refused to do. Reece, on the same day, signed a letter written by his attorney to Yeager Ford Sales, Inc., the Ford Motor Company and the Bank of War, advising them of his intent to rescind the contract. Mr. Reece had kept the car two and one-half months and had driven it approximately 3400 miles before leaving it on Yeager's lot.
The warranty given to Reece when he purchased the automobile from Yeager warranted to him that each part of a new and unused 1968 Ford automobile was free under normal use and service from defects in factory material and workmanship for a period of 24 months from the date of the purchase or until it had been driven for 24,000 miles, and that all warranties were to be fulfilled by the selling dealer or any authorized Ford dealer at his place of business by replacing with a genuine new Ford part, or Ford Authorized Remanufactured part, or Repairing any such defective part free of charge, including related labor for the original purchaser; that none of the warranties shall apply to any part of a vehicle which has been subject to misuse, negligence, alteration or accident, or which shall have been repaired outside of an authorized Ford dealer, or any abnormal application of stress to the vehicle. (Emphasis Supplied)
The warranty also states: 'The warranties herein are expressly IN LIEU OF any other express or implied warranty, condition or guarantee on the vehicle or any part thereof, including any implied WARRANTY of MERCHANTABILITY or FITNESS and of any other obligation on the part of the Ford Motor Company or the Selling Dealer.'
Mr. Reece instituted this action seeking rescission of the contract of purchase on the grounds of breach of warranty and fraud on the part of Yeager and Ford Motor Company. The jury awarded a verdict of $4,155 for the plaintiff upon which the trial court rendered judgment.
Several assignments of error are made on this appeal by Yeager Motor Sales, all of which amount to the contention that rescission is not proper under the facts and circumstances in the case at bar.
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