Web Press Services Corp. v. New London Motors, Inc.

• Decision Date: 05 May 1987
• Docket Number: 12833,Nos. 12832,s. 12832
• Citation: 203 Conn. 342,525 A.2d 57
• Court: Connecticut Supreme Court
• Parties: , 3 UCC Rep.Serv.2d 1386 WEB PRESS SERVICES CORPORATION v. NEW LONDON MOTORS, INC.

Page 57

525 A.2d 57

203 Conn. 342, 3 UCC Rep.Serv.2d 1386

WEB PRESS SERVICES CORPORATION v. NEW LONDON MOTORS, INC.

Nos. 12832, 12833.

Supreme Court of Connecticut.

Argued Dec. 5, 1986.

Decided May 5, 1987.

Jacques J. Parenteau, New London, with whom, on brief, was Mary E. Holzworth, Norwich, for appellant (plaintiff).

Andrew Brand, with whom, on brief, was Kerin M. Woods, New London, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

DANNEHY, Justice.

These two appeals were consolidated for argument. They raise identical questions. The appeal in Docket No. 12832 must be dismissed because it was prematurely brought. The appeal in Docket No. 12833 will be separately considered. ¹

The plaintiff brought this action against the defendant, a corporation engaged in selling new and used automobiles. The complaint was in five counts. In the first count the plaintiff alleged that in July, 1984, the defendant sold to the plaintiff a used 1980 model Ford Bronco (the vehicle), to be used for off-the-road driving. The plaintiff paid the purchase price and took delivery of the vehicle. Mechanical defects developed in the vehicle almost immediately, substantially impairing the vehicle's value to the plaintiff. The defendant several times attempted to remedy those defects, but without success. In October, 1984, the plaintiff tendered back the vehicle to the defendant and notified the defendant that it was revoking its acceptance pursuant to General Statutes § 42a-2-608. ² The plaintiff requested the return of the purchase price. The defendant refused to return the purchase price.

The four other counts claimed damages by specific reference to the first count. The second count sought damages on the ground that there was a breach of an implied warranty of merchantability; the third count, for breach of an implied warranty of fitness for a particular purpose; and the fourth count, for breach of express warranties. The fifth count sought damages on the ground that the defendant had engaged in unfair and deceptive practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant, in its answer, denied most of the material allegations of the complaint and also set up a special defense charging that any mechanical defects in the vehicle resulted from the plaintiff's misuse and abuse of the vehicle.

At trial, there was evidence to show that during the time the plaintiff possessed the vehicle, it experienced various mechanical problems. These problems included leakage and a noise from the left rear of the vehicle and problems with the brakes, muffler, power steering and air conditioning. Most of these difficulties were remedied by ordinary repairs which the defendant performed without cost to the plaintiff. The trial court, in fact, characterized these problems as "mostly minor." Clearly, however, a structural defect in the rear axle was hardly minor. The vehicle continued to present problems to the plaintiff, especially on the left rear side. The defect was not detected by the defendant, but was later discovered upon inspection by a certified mechanic.

The court's basic finding was that the plaintiff had failed to prove that the defendant had violated General Statutes § 42a-2-608, had breached any express or implied warranties or that the defendant's actions violated CUTPA.

General Statutes § 42a-2-608 provides in part that a buyer may revoke his acceptance of an item if there is a nonconformity in the item which "substantially impairs" its value to him. After considering the language of § 42a-2-608, and decisions interpreting that statute, the court concluded that the plaintiff could not revoke acceptance of the vehicle because "the defects in the vehicle did not substantially impair its value to the plaintiff." The court further found that the plaintiff had not established a breach of any express or implied warranty except to the extent that a limited warranty provision in the sales agreement had been breached. The court also concluded that the plaintiff had failed to present sufficient evidence to sustain its CUTPA claim. As to the special defense asserted by the defendant, the court found that the evidence was insufficient to prove abuse or misuse of the vehicle by the plaintiff. The court subsequently heard evidence as to the cost of repairing the defective axle on the vehicle and awarded damages of one half of the cost of repairing the axle, or $300, plus costs to the plaintiff. The plaintiff appeals from this judgment. We turn then to the attacks upon the judgment made by the plaintiff.

The general rule with regard to appeals of this nature is that the judgment appealed from will not be reversed in matters of fact unless it clearly appears to be erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The plaintiff first contends that the trial court committed reversible error in concluding that since the vehicle was "used," its numerous defects did not substantially impair the value of the vehicle to the plaintiff. Particularly, it is urged that the trial court erred in applying a standard for substantial impairment different from the standard applicable to new vehicles. We disagree.

After the close of the evidence, the trial judge solicited the views of counsel regarding the issue of revocation of acceptance. Specifically, the court inquired whether § 42a-2-608 was applicable to used motor vehicles. The court invited counsel to submit briefs on this issue. Counsel accepted the invitation. In its memorandum, the court noted that our jurisdiction has not determined whether the revocation provision of the Uniform Commercial Code applies to the sale of used vehicles, but that other jurisdictions have concluded that the Uniform Commercial Code does apply. See, e.g., O'Neal Ford, Inc. v. Earley, 13 Ark.App. 189, 681 S.W.2d 414 (1985); Jackson v. H. Frank Olds, Inc., 65 Ill.App.3d 571, 22 Ill.Dec. 230, 382 N.E.2d 550 (1978). Accordingly, the court concluded that " § 42a-2-608 may be applied to the sale of a used automobile."

Section 42a-2-608(1) provides in pertinent part that "[t]he buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it ... (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances." Whether the value of goods has been substantially impaired by a nonconformity is a question of fact. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 121, 374 A.2d 144 (1976). The test for substantial impairment is both subjective and objective; it focuses first, on the needs and circumstances of the particular buyer seeking to revoke, and then considers whether, from an objective standpoint, the value of the goods to the buyer has in fact been impaired. See Keen v. Modern Trailer Sales, Inc., 40 Colo.App. 527, 578 P.2d 668 (1978); Jorgensen v. Pressnall, 274 Or. 285, 545 P.2d 1382 (1976).

In the present case, the court noted that all of the problems with the vehicle except for the defective axle, which was not immediately discovered, had been corrected at the defendant's expense. The court reviewed the language of § 42a-2-608, articulated both the subjective and objective components of the substantial impairment test, and concluded that the defects in the vehicle did not substantially impair its value to the plaintiff. The court also found that the plaintiff's acceptance of the vehicle had not been induced by the seller's assurances. Although the court noted that Conte v. Dwan Lincoln-Mercury, Inc., supra, involved a new vehicle whereas the one in the present case was used, there is nothing in the court's memorandum which indicates that it utilized a test for substantial impairment different from that employed in the Conte decision. Although the court stated that a purchaser of a used vehicle does not have the same expectations as one who buys a new vehicle, this passing observation was made in the context of the court's discussion of whether the plaintiff's acceptance was induced by the seller's assurance. It was not a part of the court's discussion of the substantial impairment test. In short, the record does not indicate the use of an erroneous standard by the trial court.

We also hold that the court's application of the substantial impairment test to the facts of the present case was not clearly erroneous. There was testimony that during the period in which the plaintiff possessed the vehicle, it was used for transportation connected with the plaintiff's business, pleasure trips to Canada and New Hampshire, and off-the-road driving on the beach.

The defendant's next assignments of error involve the court's failure to find a breach of either an express or implied warranty. The court found that the plaintiff had failed to establish any breach "except for the limited warranty as to certain parts for a period of thirty days." Before addressing the merits of the plaintiff's claim regarding express and implied warranties we must first decide whether the court's consideration of the limited warranty was proper.

In its memorandum, the court noted that the purchase order for the vehicle, which consisted of a one page document with information printed on both sides, contained the following warranty provision: "This motor vehicle is guaranteed by a limited warranty for 30 days ... on a 50-50 basis on motor, transmission and differential only, half of list price of parts and labor to be borne by seller and half to be paid by purchaser...." On the reverse side of the purchase order, the defendant "disclaim[s] all warranties, either express or implied, including any implied warranty of merchantability." The disclaimer provision appears in large print under the...