Tracy v. Vinton Motors, Inc.

• Decision Date: 03 October 1972
• Docket Number: No. 23-72,23-72
• Citation: 130 Vt. 512,296 A.2d 269
• Court: Vermont Supreme Court
• Parties: , 11 UCC Rep.Serv. 750 Galen R. and Ruby W. TRACY v. VINTON MOTORS, INC.

Page 269

296 A.2d 269

130 Vt. 512, 11 UCC Rep.Serv. 750

Galen R. and Ruby W. TRACY v. VINTON MOTORS, INC.

No. 23-72.

Supreme Court of Vermont.

Oct. 3, 1972.

Richard A. Axelrod, Vermont Legal Aid, Inc., St. Johnsbury, and Lawrence E. Kimball, St. Johnsbury, for plaintiffs.

James C. Gallagher, of Downs, Rachlin & Martin, St. Johnsbury, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

BARNEY, Justice.

On April 9, 1971, the plaintiffs purchased a used car from the defendant. It was a 1969 Oldsmobile Cutlass, and the purchase price was $1895.00. The terms of the transaction were expressed in a written contract. After the trade the plaintiffs became dissatisfied with the condition of the paint on the vehicle and sought to have the defendant repaint it, at a cost of $400.00. This took place on or about May 14, 1971, according to the plaintiffs' pleadings. The defendant had acquired the car about three weeks before the sale from another dealer, and advertised it as a 'special'. It is not claimed that the defendant was responsible for the allegedly defective paint job. The defendant refused to repaint, proposing some alternative solutions unacceptable to the plaintiffs, not material to the issues before us. Litigation followed.

The lawsuit got no further than the pleadings. The plaintiffs' complaint was based on an implied warranty of merchantability. The defendant filed an answer and both sides filed interrogatories. The plaintiffs moved to amend their complaint to add a count in express warranty and the defendant countered with a motion to dismiss for failure to state a cause of action upon which relief could be granted. The court below denied the motion to amend and granted the motion to dismiss. The questions raised have been brought here.

The historical Vermont tradition of liberality in the allowance of amendments to the pleadings, where no prejudice is involved, has not been abrogated by the new Vermont Rules of Civil Procedure. Rule 15(a) V.R.C.P. The measures of that liberality have been many times stated in our cases. See, for example, Swanton Village v. Town of Highgate, 128 Vt. 401, 402-403, 264 A.2d 804 (1970); Neverett v. Towne, 121 Vt. 447, 452, 159 A.2d 345 (1960). The presentation of inconsistent claims is permissible under Rule 8(e)(2), as it was under 12 V.S.A. § 1025, and a proposed amendment, otherwise proper, would not be barred on that account.

Thus, the initial question is whether or not the trial court improperly or erroneously denied the plaintiffs their proffered amendment. However, a more fundamental consideration must first be treated. Dismissal of the action was based on a ruling that no cause of action had been stated. If this ruling is correct, even with the complaint being taken as amended as proposed, the disallowance of the amendment is of no consequence. For the reason, we must first examine the case made by the pleadings in that light.

Warranties were dealt with in the written contract of sale, which was incorporated in the pleadings. On the face of the contract, under the heading 'Warranty', the choices 'New', 'O.K.', 'As Is' and 'Other' were not marked, but '30 day/1000 miles 50/50' was circled. On the reverse of the form appeared the 'Conditions' of the contract. These conditions disclaim any implied warranties, and limit the express warranties to the manufacturer's new car warranty insofar as it is applicable and has not expired.

We first consider the thirty day warranty circled on the sales contract. Under the plaintiffs' allegations themselves nothing was done to implement a remedy under that provision within the period. As is set out in 77 C.J.S. Sales § 320, at 1172, such limitations on warranties are valid, and it is generally held that as to defects not discovered within the thirty-day period, absent fraud, the risk of loss is on the purchaser. The parties have a right to contract with each other as to the terms and limits of warranty, and such agreements will be binding. Hall v. Hodgdon, 114 Vt. 63, 67, 39 A.2d 195 (1944). In this case, the time for recovery under this warranty had run, and was no longer available to the plaintiffs.

Both of the plaintiffs' remaining claims of warranty require support outside the contract. The proposed amendment to the pleadings, as set forth in the plaintiffs' brief, relates to a claimed oral representation by a salesman of the defendant. Since the transaction was embodied in a written sales contract, which did not include any such warranty and also disclaimed any warranties not acknowledged in the written agreement. Hathaway v. Ray's Motor Sales, Inc., 127 Vt. 279, 282, 247 A.2d 512 (1968), bars it as a basis of recovery. See also 9A V.S.A. § 2-202.

The Uniform Commercial Code, Title 9A of Vermont Statutes Annotated recognizes the freedom of parties to make their own bargain, including the disclaiming of any warranties. 9A V.S.A. § 2-316. However, warranties as to merchantability and fitness are subject to special requirements as stated in that statutory provision. The form of effective disclaimer is there spelled out.

In their pleadings in this case the plaintiffs rely on an implied warranty of merchantability. Under the statute, 9A V.S.A. § 2-316(2), 'to exclude or modify any implied warranty (or (sic) merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous). . . .' Assuming that some manner of...