Shelton v. Farkas

• Decision Date: 05 November 1981
• Docket Number: No. 3929-III-3,3929-III-3
• Citation: 30 Wn.App. 549,635 P.2d 1109
• Parties: , 32 UCC Rep.Serv. 1421 James SHELTON, dba University Village Music Center, Appellant, v. Barbara FARKAS and John Doe Farkas, Respondents.
• Court: Washington Court of Appeals

Page 549

30 Wn.App. 549

635 P.2d 1109, 32 UCC Rep.Serv. 1421

James SHELTON, dba University Village Music Center, Appellant, v. Barbara FARKAS and John Doe Farkas, Respondents.

No. 3929-III-3.

Court of Appeals of Washington, Division 3,

Panel Three.

Nov. 5, 1981.

Rehearing Denied Nov. 24, 1981.

Review Denied Jan. 8, 1982.

James Shelton, pro se.

Kenneth D. Beckley, Schuller, Frederick & Beckley, Ellensburg, for respondents.

McINTURFF, Chief Judge.

James Shelton appeals from a judgment disallowing his recovery of money allegedly owed in the sale of a violin.

Mr. Shelton is an experienced musician who operates the University Village Music Center in Seattle. On Saturday, April 14, 1979, Barbara Owen (formerly Barbara Farkas) and her 22-year-old daughter, Penny, drove from their residence in Ellensburg to Mr. Shelton's store to look at violins. Penny had been studying violin in college for approximately 9 months. They advised Mr. Shelton of the price-range in which they were interested, and Penny said she informed Mr. Shelton she was relying upon his expertise. He selected a violin for $368.90, including case and state sales tax. Mr. Shelton claims the instrument was originally priced at $465 but he discounted it because Mrs. Owen was willing to take it on an "as is" basis. ¹ She and Penny alleged Mr. Shelton represented that the violin was "the best" and a "perfect violin for you" and generally represented it as being of high quality. Mrs. Owen gave a check and received the instrument.

The following Monday, April 16, 1979, Penny took the violin to her college music teacher who immediately told her the instrument had poor tone, a crack in the body, and that it was not the right instrument for her. Later that same day when Mrs. Owen was informed of the inspection, she telephoned Mr. Shelton, indicated her dissatisfaction and requested a refund. Mr. Shelton offered to exchange the violin for another instrument (within the following 10 days) but refused to refund the purchase price. In response Mrs. Owen subsequently stopped payment on the check.

On May 24, 1979, Mr. Shelton, proceeding pro se, had Mrs. Owen personally served with a copy of his summons and complaint for trial in King County. Mrs. Owen, through her attorney, Kenneth Beckley, advised Mr. Shelton, on more than one occasion, ² that should he wish to pursue his legal action it would be subject to change of venue. Nevertheless, Mr. Shelton commenced his action in King County and was granted a summary judgment on June 27, 1979. Mrs. Owen sent Mr. Shelton a motion and affidavit for order changing venue to Kittitas County on June 27, 1979, and moved to vacate the summary judgment.

Summary judgment was vacated in King County and terms of $150 were imposed upon Mr. Shelton since he had prior notice of improper venue. See RCW 4.12.090. The action was transferred to Kittitas County where he filed another motion for summary judgment. In response to the motion Mrs. Owen filed an affidavit indicating Mr. Shelton's failure to comply with the payment of terms which were a condition precedent to the bringing of an action in Kittitas. ³

On October 10, 1979, Mr. Shelton wrote Mr. Beckley:

Please be advised you may pick up your $150.00 at 9:30 a. m. Tuesday or Wednesday the 25th or 26th October 1979, or at 9:30 p. m. 27 October 1979 at 4733 Village Pl Northeast Seattle, Washington.

Since this $150.00 award was due to the personal error of myself I will have to pay you personally at any of those times.... Failure to pick up payment will be deemed your intent to forfeiture.

On October 17, 1979, Mr. Beckley wrote Mr. Shelton:

I do not plan to drive to your store in Seattle to pick up whatever funds you wish to pay at whatever time you wish to pay them. What I suggest you do is please send me your check in the amount of $150 in the envelope enclosed.

Due to nonpayment, the motion for summary judgment in Kittitas was consequently denied. At the same hearing on November 26, 1979, a motion by Mrs. Owen for continuance was denied as well as Mr. Shelton's request for terms. ⁴ Trial was finally conducted on March 7, 1980, concluding in the judgment for Mrs. Owen and an award of attorney's fees to her under RCW 4.84.250. ⁵

Initially, Mr. Shelton argues the trial court erred in granting a change of venue from King County to Kittitas County. We do not agree.

An action for the recovery of money owed is clearly in personam and therefore transitory. ⁶ See 77 Am.Jur.2d Venue § 9 (1975). RCW 4.12.025 provides in part:

An action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants reside at the time of the commencement of the action.

Mrs. Owen properly requested the action be transferred to Kittitas, the county of her residence. Corning & Sons, Inc. v. McNamara, 8 Wash.App. 441, 446, 506 P.2d 1328 (1973). The court did not err in granting Mrs. Owen's motion to change venue.

Additionally, Mr. Shelton contends the court erred in awarding Mrs. Owen terms for the changing of venue. RCW 4.12.090(1) provides in part:

(I)f the court finds that the plaintiff could have determined the county of proper venue with reasonable diligence, it shall order the plaintiff to pay the reasonable attorney's fee of the defendant for the changing of venue to the proper county.

We find ample support in the record for the court's award. Mr. Beckley on several occasions advised Mr. Shelton of the impropriety of filing the action in King County and that a motion would be filed to change venue to Kittitas County. Consequently, we find no error.

Mr. Shelton next maintains the use of an "as is" clause affects the buyer's right to reasonably inspect goods prior to acceptance, or to revoke after acceptance. We initially note the use of an "as is" expression is relevant to the exclusion or modification of warranties under RCW 62A.2-316(3) (a). ⁷ However, Mr. Shelton's action does not concern warranty, rather the threshold question is whether Mrs. Owen accepted the violin, and if it was accepted, whether she properly revoked her acceptance. ⁸

"Acceptance" is generally regarded as a term of art distinguishable from other acts of the buyer. As stated in J. White & R. Summers, Uniform Commercial Code § 8.2 at 296 (2d ed. 1980):

(W)hether the buyer has "accepted" the goods is unrelated to the question whether title has passed from seller to buyer.... (A)cceptance is only tangentially related to buyer's possession of the goods, and in the usual case the buyer will have had possession of the goods for some time before he has "accepted" them.

Under RCW 62A.2-606(1)(a) ⁹ acceptance occurs when the buyer, after a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will retain them in spite of nonconformity. Here, Mr. Shelton's store policy was to not allow the violin to be removed from the store without purchase. Penny's violin instructor would not have been expected to make a special trip to the store for the purpose of inspecting the violin. Mrs. Owen purchased the violin on Saturday. The violin was taken to Penny's teacher the following Monday. Later that Monday, Mrs. Owen notified Mr. Shelton of the inspection and of her desire not to retain possession. This 2-day period is within a reasonable time to inspect under RCW 62A.2-606(1)(a). Consequently, we do not deem Mrs. Owen to have "accepted" the violin within the meaning of the code.

Assuming for the sake of argument, the violin was accepted pursuant to RCW 62A.2-606(1), we also find a justifiable revocation of acceptance pursuant to RCW 62A.2-608(1)(b) which provides:

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

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

(Italics ours.)

The record indicates Mr. Shelton was an experienced musician and music store operator while Penny had only played the violin for approximately 9 months. Mrs. Owen stated in a letter dated April 21, 1979:

(W)e relied upon your expertise and advice to guide us in the wise choice of a violin. We readily accepted your representation of the violin in question; we accepted its high quality, good condition and high market value on your say so....

Additionally, Penny Farkas said Mr. Shelton compared the violin to one selling for $1,000. Mr. Shelton's representations at the time of sale are sufficient for Mrs. Owen to argue that her acceptance was reasonably induced by Mr. Shelton's assurances. Both Penny and Mrs. Owen testified that to the best of their knowledge the crack was not visible when the violin was purchased. Although the right of a buyer to revoke acceptance of goods depends upon objective tests ¹⁰ of substantial impairment, the testimony of Jeff Cox, called as an expert witness, stated that once a crack has opened it usually leads to more expense "and so gradually, it really isn't worth the money." We find substantial evidence from which the trial judge could have found objective impairment of the violin to Mrs. Owen. ¹¹

Mr. Shelton obliquely argues his entitlement to the cost of repair for the damaged instrument pursuant to RCW 62A.2-710; however, this argument was not presented to the trial judge. Relief which was not requested in the trial court cannot be requested for the first time on appeal. Hammond v. Hammond, 26 Wash.App. 129, 133, 611 P.2d 1352 (1980).

Lastly, Mrs. Owen cross-appeals for attorney's fees on this appeal. RCW 4.84.250 states:

(I)n any action for damages where the amount pleaded by the prevailing party ... is one thousand dollars or less, there shall be taxed and allowed to the prevailing party ... a reasonable amount to be fixed by the court as attorneys' fees.

The...