Vintage Homes, Inc. v. Coldiron, 6808

• Decision Date: 25 July 1979
• Docket Number: No. 6808,6808
• Citation: 585 S.W.2d 886
• Parties: 27 UCC Rep.Serv. 403 VINTAGE HOMES, INC., Appellant, v. Leslie COLDIRON, Appellee.
• Court: Texas Court of Appeals

Page 886

585 S.W.2d 886

27 UCC Rep.Serv. 403

VINTAGE HOMES, INC., Appellant, v. Leslie COLDIRON, Appellee.

No. 6808.

Court of Civil Appeals of Texas, El Paso.

July 25, 1979.

Tom R. Bevill, Breckenridge, for appellant.

Ronald E. Ragsdale, Andrews, for appellee.

OPINION

WARD, Justice.

This case involves a breach of the implied warranty of merchantability in the sale of a new mobile home. The mobile home was bought from an independent retail dealer, but the only Defendant was the manufacturer. Trial was to the Court sitting without a jury. By its judgment, the trial Court found that there was an implied warranty of merchantability, as the term is defined in Section 2.314 of the Tex.Bus. & Comm.Code Ann., which accompanied the sale; that the home was defectively manufactured and constructed and a breach of the implied warranty had occurred; and awarded the consumer the sum of $5,879.15 as damages for his economic loss. The Court in its judgment determined that this amount represented the difference between the represented value of the mobile home at the date of sale and its actual value. Findings of fact were not requested and except as set out in the judgment were not filed. We affirm.

Leslie Coldiron purchased the mobile home on November 15, 1971, from Permian Pontiac in Midland for the sum of $7,079.15. The unit was built by the Defendant, Vintage Homes, Inc. The dealer transported the unit to Andrews, blocked it up on the purchaser's lot and hooked up the sewer. The purchaser and his wife hooked up the other utilities. Within a period of six months, the Coldirons experienced trouble with the unit when the lights went out; the electric switches burned up; the water lines broke in two places. Thereafter, they replaced the electric breaker box. Next, large holes developed around the windows and doors and holes appeared in the roof and at one end of the unit. These problems permitted water and blowing sand to enter. Finally, the walls fell out in the hallway; the kitchen cabinets pulled out from the ceiling; and they discovered that the insulation was inadequate. Within the first year after the sale, Permian Pontiac attempted some of the electrical and plumbing repairs. At one time, after the buyer complained to the dealer, a repairman from Vintage Homes inspected the unit and worked on the roof where he installed some "rumble bars," but could do nothing about the doors and windows. After the first year, the buyer made or paid for his own repairs but, when the walls and roof started buckling and the sand from the blowing wind got worse, he decided to contact an attorney. His suit was filed in October, 1975. From the time of the purchase of the unit to the time of trial, the Plaintiff and his family lived in the unit.

Mr. Rogers was called by Coldiron and, after qualifying as an expert on valuations and repairs to mobile homes, verified the defects, stated that the defects were caused by manufacture and not by wear and tear, and that the fair market value of the home as a new unit was between $1200.00 and $1500.00.

The defense consisted of an expert testifying that he examined the unit in 1976; that he found the insulation adequate; and that the damages to the unit amounted to only $1200.00 to $1500.00. He stated that in his opinion the damages were caused by improper leveling of the mobile home. This latter testimony regarding leveling was rebutted by Coldiron who maintained that the house was properly leveled at all times.

The Appellant's first point attacks the sufficiency of the evidence supporting the trial Court's finding contained in the judgment that at the date of sale the mobile home would not pass without objection in trade under the contract description and that the same was not fit for the ordinary purpose for which the goods were used. We will limit our remarks to the breach of the implied warranty of merchantability where the goods are unfit for the purposes for which the goods are ordinarily used. Tex.Bus. & Comm.Code Ann. sec. 2.314(b) (3). In this sale, the implied warranty was that the mobile home was to be fit for residential use. Davis v. Vintage Enterprises, Inc., 23 N.C.App. 581, 209 S.E.2d 824 (1974). The defects used to show the breach of the warranty had to be in existence at the time of sale or be inherent in the article sold. Ford Motor Company v. Tidwell, 563 S.W.2d 831 (Tex.Civ.App. El Paso 1978, writ ref'd n. r. e.). The Appellee testified to some fifteen separate defects, and those permitting the elements to enter into the trailer were certainly of a serious nature. His expert who testified gave his opinion that they were all due to the poor manner of manufacture and not to wear and tear. Appellant's expert...