Slaney v. Westwood Auto, Inc.

• Decision Date: 30 January 1975
• Citation: 366 Mass. 688,322 N.E.2d 768
• Parties: , 89 A.L.R.3d 433 Richard SLANEY v. WESTWOOD AUTO, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 768

322 N.E.2d 768

366 Mass. 688, 89 A.L.R.3d 433

Richard SLANEY v. WESTWOOD AUTO, INC.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 8, 1974.

Decided Jan. 30, 1975.

Ralph S. Tyler, Roxbury, for plaintiff.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

This case raises novel questions under the Regulation of Business Practice and Consumer Protection Act, G.L. c. 93A, inserted by St.1967, c. 813, § 1. It is before us on the plaintiff's appeal from a final decree of the Superior Court, following the sustaining of a demurrer, dismissing his bill in equity seeking damages, contract rescission, and other relief. The alleged right to this relief arose out of the plaintiff's purchase of a used automobile from the defendant. Although no appeal was taken from the interlocutory decree sustaining the demurrer, the propriety of that decree is open on appeal from the final decree. See former G.L. c. 214, § 27; Nochemson v. Aronson, 279 Mass. 278, 280, 181 N.E. 188 (1932); Clinton Housing Authy. v. Finance Comm. of Clinton, 329 Mass. 495, 496, 109 N.E.2d 449 (1952). ¹ It is the sustaining of the demurrer which has been urged as error by the plaintiff.

The factual allegations in the bill, which are taken as true when ruling on a demurrer, Shea v. Shea, 296 Mass. 143, 144, 4 N.E.2d 1015 (1936); Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High Sch. Bldg. Comm. of Westfield, 345 Mass. 267, 269, 186 N.E.2d 911 (1962), can be broken down into four groups, each of which could be construed as purporting to state a cause of action:

1. The defendant failed to fulfil promises, made as part of the sale transaction, to repair the exhaust system, the spare tire, and the tail light, and to align the front end.

2. The defendant refused to fulfil a promise, relied on by the plaintiff in making his purchase, to repair all other defects in the automobile subsequent to the expiration of the thirty-day warranty period provided for in the car order form. ² This refusal occurred when the plaintiff discovered after the thirty-day warranty period that the entire engine was defective and had to be replaced and that the radiator was defective and needed repairs.

3. The defendant knew or should have known that the engine was defective at the time of sale and did not disclose this fact to the plaintiff. The plaintiff did not discover it until after the expiration of the thirty-day warranty period.

4. The plaintiff, as the defendant knew or should have known, was under twenty-one years of age at the time of purchase, and did not have the written parental consent required at that time by former G.L. c. 90, § 2C, for the purchase of an automobile. ³

The bill further alleges that the defendant's failure to fulfil the repair promises noted above constituted a breach of the Uniform Commercial Code express warranty provision, G.L. c. 106, § 2--313, and that the sale of the automobile with the previously mentioned defects amounted to a breach of the Code's implied warranty of merchantability provisions, G.L. c. 106, §§ 2--314, 2--316A. Other sections of the bill allege that the plaintiff, through counsel, sent a demand letter complying with G.L. c. 93A, § 9, and that the defendant failed to respond thereto. Finally, the bill alleges the damages suffered by the plaintiff and requests various kinds of relief, principally rescission of the contract of sale and reimbursement for expenses incurred in repairing defects in the automobile.

The defendant offered three grounds of demurrer: '(1) The plaintiff does not set forth a cause of action within the jurisdiction of equity; (2) The statute that the plaintiff relies on for jurisdiction in equity, namely, G.L. c. 93A, § 9, is not applicable on the facts contained in the Bill to sustain a cause of action in equity; and (3) The plaintiff has a complete and adequate remedy at law.' The trial judge, apparently agreeing with statement (2) above, ruled 'that Chapter 93A of the General Laws created no new cause of action for this type of case which is the classic breach of express or implied warranty under the Commercial Code, . . . (and) that the buyer's rights of rescission are similarly covered in the Commercial Code and that no new equitable cause of action was created by Chapter 93A.'

Because this case presents the first opportunity this court has had to consider the procedural and substantive scope of the private remedy provisions of c. 93A, ⁴ we shall examine the pleading requirements of the statute and determine whether the instant bill meets those requirements. Incident to this examination, we shall touch on the various forms of relief afforded by the statute under proper pleadings and proof. Before doing this, however, we shall consider the question of the plaintiff's age at the time of entering into the contract.

I. THE MINORITY ISSUE.

Under the common law of this jurisdiction, any contract, except one for necessaries, entered into by an unemancipated minor could be disaffirmed by him before he reached the age of twenty-one or within a reasonable time thereafter. Frye v. Yasi, 327 Mass. 724, 728, 101 N.E.2d 128 (1951), and cases therein cited. No particular words or acts are required for disaffirmance; any unequivocal repudiation of the contract is sufficient. Tracy v. Brown, 265 Mass. 163, 164--165, 163 N.E. 885 (1928). Bringing suit to rescind is certainly such an unequivocal repudiation. See Del Santo v. Bristol County Stadium, Inc., 273 F.2d 605, 607--608 (1st Cir. 1960). Former G.L. c. 90, § 2C, merely altered these common law principles by making an exception to them for automobile purchases where the minor was over eighteen years of age and had the written permission of his parent or guardian to make the purchase. The plaintiff here alleged that he was under twenty-one at the time of the purchase and did not have the requisite written permission. This pleading properly invoked the jurisdiction of an equity court to enforce the disaffirmance by an appropriate decree. See Reed, Equity Pleading and Practice, §§ 282, 342 (1952). Whether the plaintiff was emancipated, whether the automobile was a necessary, or whether the disaffirmance was timely are all factual questions to be resolved at trial. See, for example, Welch v. King, 279 Mass. 445, 450, 181 N.E. 846 (1932). As to the request for relief on the ground of minority at least, the demurrer should have been overruled. ⁵

II. THE CHAPTER 93A ISSUES

A. The Background and Structure of c. 93A.

Chapter 93A of the General Laws is designated as the 'Regulation of Business Practice and Consumer Protection Act.' St.1967, c. 813, § 2. It is a statute of broad impact which creates new substantive rights and provides new procedural devices for the enforcement of those rights. We recently had occasion to comment on the far-reaching effects of this statute in our opinion in Commonwealth v. DeCotis, --- Mass. ---, ---, fn. 8 ^a, 316 N.E.2d 748 (1974), where we said: 'We would not concur with the . . . argument that . . . (by enacting G.L. c. 93A) 'the Legislature did not confer new substantive rights on consumers,' . . .. Although G.L. c. 93A admittedly established new procedural devices to aid consumers and others . . ., it also created new substantive rights by making conduct unlawful which was not unlawful under the common law or any prior statute.' We also quoted with approval the statement 'that the statutory words "(u)nfair and deceptive practices' (in G.L. c. 93A, § 2) are not limited by traditional tort and contract law requirements." Ibid.

Chapter 93A as presently in force consists of five segments which combine to form a comprehensive substantive and procedural business and consumer protection package:

(a) Section 1 provides definitions for some of the terms employed in the remainder of the chapter. ⁶

Sections 2 and 3 indicate the proscribed conduct and enumerate the transactions which are exempt from those proscriptions. ⁷ The burden of establishing exemptions, none of which is at issue here, is on the person claiming them. Commonwealth v. DeCotis, supra, at ---, 316 N.E.2d 748. ^b Section 2, the substantive heart of c. 93A, declares that unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. Two methods are given for construction of the terms 'unfair methods of competition,' 'unfair or deceptive acts or practices,' and 'in the conduct of any trade or commerce.' First, the courts are directed by the Legislature to be guided by the interpretations given by the Federal Trade Commission (FTC) and the Federal Courts to § 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (1970) (Federal act). ⁸ Second, the Attorney General is empowered to make interpretive rules and regulations consistent with the FTC's and the Federal Courts' construction of the Federal act.

(c) Sections 4 through 8 include the public remedy provisions, i.e., the procedures and relief available to the Attorney General when he has reason to believe that anyone is committing, or is about to commit, any act which is unlawful under § 2. ⁹ These public remedy sections, as they relate to the conduct proscribed by the chapter, provided the focus of our recent examination in the DeCotis case.

(d) Sections 9 and 11 (the latter section having been inserted by St.1972, c. 614, § 2) provide the chapter's private remedies and procedures. ¹⁰ These are available to the individual consumer ¹¹ or businessman ¹² (or class of consumers or businessmen in appropriate cases) who suffers a loss, in the case of the consumer, as a result of the employment of an unfair or deceptive act or practice by a businessman, or, in the case of a businessman, as a result of the employment by another businessman of either an unfair or deceptive act or practice or of an unfair method of competition. Section 9--the...