Example of Court Annexed Arbitration Opinion: Nine
BREACH OF WARRANTIES IN THE SALE OF A SMALL FARM TRACTOR
Yesterday I had the pleasure to serve as
arbitrator in your case, involving the purchase and sale of a
[brandname] tractor. Hardheadedness in business
relationships often serve the aggregate goals of each side, but
occasionally, may get in the way of pragmatic resolution of a
dispute. Sometimes reasonableness is in the eye of the
beholder. Where reasonable people can differ, and the beholder is
the arbitrator, at least two things can happen: It will be expensive
for both sides, and, one or maybe both sides will find out that the
arbitrator sees it differently. As always, there are three
truths, one for each side and one for me. In this case, I
don’t find that either side was grossly unreasonable or
unrealistic, but, sometimes I only have to be 51% convinced to send the
case in one or another direction which can have black or white effects
further up (or down) the decision tree. And, unfortunately, it
costs proportionately more to litigate a dispute involving a $13,500
tractor as a dispute involving ten times a much.
So here are the players / witnesses:
Plaintiff is a property owner / real estate broker.
Defendant is an Oregon
corporation, operating out of Southern Oregon.
Personifying Defendant is its president. Plaintiff purchased
a tractor from Defendant. The sale was arranged by the sales
manager, and the tractor was delivered by an independent contractor.
Here are the claims in the pleadings. In his amended complaint, plaintiff alleges:
‒ in his first claim for relief, first count, that
the tractor was non-conforming and he rightfully rejected it, that he
can cancel the sale and recover his purchase price, and have a lien on
the tractor for the amount he spent to preserve it,
‒ in his first claim for relief, second count, that he revoked acceptance,
‒ in his first claim for relief, third count, for breach express warranty,
‒ in his first claim for relief, fourth count, for breach of the implied warranty of merchantability,
‒ in his first claim for relief, fifth count, for
breach of the implied warranty of fitness for a particular purpose,
‒ in his first claim for relief, sixth count, for failure of an essential purpose, and
‒ in his first claim for relief, seventh count, for
cancellation and damages under the Magnuson Moss Warranty Act.
Defendant admitted that it is in the business of
making sales of tractors, and that under the MMWA the tractor was a
consumer product, that Plaintiff is a consumer, and that Defendant
is a supplier.
Defendant alleged as affirmative defenses that:
‒ there were no warranties, and
‒ that it limited the warranties available.
Both sides claim their reasonable attorney fees.
Here is what happened, as I see it:
Defendant is in the business of distributing
tractors, including the [] brand. It is undisputed that []
tractors are a relatively inexpensive line of [non US
manufacture] tractors with more basic features. They are
full size tractors, but more appropriate for 2 to 5 acre parcels than
for larger scale agricultural or construction operations. It was
alleged that [] tractors are a consumer product, and Defendant admitted
that allegation. Furthermore, defendant's president so
testified. Independently of the admission in the answer, having
in mind Crume v. Ford Motor Co., 60 Or App 224, 653 P2d 564 (1982), I
find that the [] tractor involved in this case is a consumer product as
defined in the MMWA.
The tractor is also ‘goods’ under Oregon’s Uniform Commercial Code.
Defendant is an internet based business, selling new
tractors all over the world, with a real bricks and mortar site in
[Southern] Oregon. Internet communications and advertising do not
change the legal principles involved. It is undisputed, and
consistent with my experience in purchasing other kinds of used
equipment I find that, trying to find a good condition used tractor is
a crap shoot.
Plaintiff was looking for a tractor mainly to use on
his 2 ½ acre property in SW Portland. He had looked at
used tractors, but was also shopping the internet for a good deal on a
new tractor, and ended up communicating with [the sales manager] at
Defendant. [Sales Manager] testified that [plaintiff]also
said that he wanted to use the tractor on his real estate
projects. I’m inclined to credit plaintiff over the
sales manager on this point, but it does not matter, because the
commercial / personal use of the tractor does not matter under the the
UCC, and under the MMWA, the question is not how the buyer will use the
goods, but rather, objectively whether they are consumer products.
Regarding the website as the basis for the contract,
for warranties, and for limitations of warranty, I view it as
background to the transaction, not as constituting the transaction
itself. I view the parol evidence rule as precluding evidence of
prior negotiations (to the extent the transaction is evidenced by
documents) and the exceptions for fraud and mistake are not implicated
by the evidence in this case. But, most of this transaction was
oral, and not evidenced in mutually executed documents.
There was an attempt at limiting or disclaiming
warranties towards the bottom of the “Privacy Policy and
Terms” page of the website. I believe that page was on the
website and could have been reached by plaintiff in April 2006,
but I also find that he did not go there. It may be possible for
a seller to impose enforceable terms and conditions by stating those on
a website, but, in my opinion, a link with the identification
“Privacy Policy and Terms” does not achieve that.
Such a link suggests that only terms relating to privacy will be found
there. If Defendant wants a buyer to know the terms of sale, that
title is inadequate, regardless of whether it was drafted by someone
knowledgeable in website design.
Under the UCC, the implied warranties in the sale of
goods can be disclaimed, but such disclaimers must be
‘conspicuous.’ Case law suggests that in order for
disclaimers to be effective, they need to be called to the attention of
the buyer, which can occur in various ways, such as by bold type,
capital letters, larger type, placing the disclaimer near the beginning
of the contract or near the signature line, requiring the clause to be
separately initialed, putting it on a separate piece of paper,
etc. I’m not sure that a disclaimer could be effective if
listed on a terms and conditions page on the website in the first
place, but, if it can, this one did not meet the conspicuousness
requirement in any way. It is none of my business, but I would
recommend at a minimum that the ‘business’ terms and
conditions be separated from the ‘privacy’ terms on the web
page, and they have separate ‘buttons’ / links. Even
then one could not guarantee enforceability, but, customers who are
interested in ‘what the lawyers write’ would be more likely
to get there.
The Sales Manager had apparent, if not actual,
authority to act on behalf of Defendant, and his acts and omissions
bind Defendant. Plaintiff and the Sales Manager had several
conversations about plaintiff’s intended use. The Sales
Manager steered plaintiff to the particular tractor involved in
this case. That implicates the UCC warranty of fitness for a
particular purpose. Any sale of new goods implicates the UCC
warranty of merchantability. To skip forwards, the invoice also
provided a UCC express warranty against defects in manufacturer’s
parts - although plaintiff testified that language was not something
that was discussed on the phone, and plaintiff did not ask for the
invoice. The Sales Manager did testify that the warranty was
discussed on the phone, but I am not entirely inclined to believe the
Sales Manager - I don’t think he is willing to acknowledge error.
The Sales Manager convinced plaintiff that
the tractor was suitable for plaintiff’s intended use (and
it may have been), and they agreed on a purchase price of $13,500
including delivery. Plaintiff testified that he and the Sales
Manager never discussed warranties and I quote “No, I don’t
think we ever did, I just asked him ‘am I going to be happy with
this tractor?’” When asked ‘did you discuss what
would take place if you were unhappy,’ the answer was
‘no.’
It is obvious that delivery is not
‘free’ but is simply absorbed into the price.
Plaintiff did not go to defendant's place of business to observe
a tractor in operation nor did he arrange to see one in operation
elsewhere. This was in hindsight a mistake.
Plaintiff said that the Sales Manager told him he could try it out
when it was delivered. I’m not sure that Defendant will
really deliver a tractor 300 miles away ‘on approval’ but
when it was delivered, plaintiff did not try it out before paying for
it. This was with hindsight another mistake, exacerbating the
first one. Whether or not he could have seen one other than in
defendant's place of business, no doubt he could have gone there to see
one. I don’t believe that Defendant would or did agree to
leave a tractor with a customer to ‘try out.’ When
plaintiff was asked whether he thought the delivery was an opportunity
to try the tractor out, he also said ‘no.’ Plaintiff
testified that he asks himself why he accepted delivery and that he was
sure the delivery contractor would have given him more time if he
needed it.
There is nothing that prohibits a consumer from
making a large purchase of goods sight unseen, but, it is risky, in
light of the utterly clear rule in Oregon that there is no absolute
right to rescind a sale of consumer goods based on buyer’s
remorse.
There were discussions between plaintiff and the
Sales Manager about when the tractor would be delivered.
Plaintiff did not want the tractor delivered on April 29, 2006 because
that was the date of his daughter’s birthday party, and said
so. The Sales Manager wanted to have it delivered that day
because he had another tractor going north that day, which was true;
there was another tractor delivered in Portland by the delivery
contractor that day. Eventually, the Sales Manager was able to
convince plaintiff to accept delivery on April 29, if the tractor would
be delivered before 8:00 a.m. Whatever hind sight tells us about
the wisdom of plaintiff’s accession to the Sales Manager’s
desires, they made that agreement.
Defendant does not special order a tractor from
overseas for each customer. Rather, it sells tractors that
it has in stock. The tractors are received, presumably partly
broken down, in crates from overseas, and are assembled in defendant's
place of business. The back hoe assembly is a separate product
which is added on to the tractors, essentially as an option. I
don’t doubt that normally, each tractor is assembled, and to some
degree put through its paces before delivery. The Sales Manager
testified that this tractor was assembled and then assigned to
plaintiff. I don’t question this. The Sales Manager
also testified that this tractor was run for four to five hours in the
yard outside the Defendant building. The tractor has an hours
meter. The testimony is that the hours on the tractor last week
was 7.0 and that plaintiff has run the tractor every few months to
maintain it, for 2 ½ years. There was no attempt to
impeach plaintiff’s testimony in this regard, and I credit that
testimony. By a preponderance of the evidence, I conclude that
this tractor was not run for more than an hour before it was delivered
to plaintiff. My conclusion is not that the Sales Manager is
lying, but rather, his testimony is based on what usually happens and
what is supposed to happen, not what actually happened.
The two tractors were loaded onto the delivery
contractor’s trailer the evening before. There was no
testimony that the delivery contractor was, or was not, told to get the
tractor to plaintiff’s by 8:00 a.m. Things might have
been different had that happened. There is no evidence that the
delivery contractor did anything wrong and generally I credit the
delivery contractor’s testimony. The delivery contractor
arrived with the tractor about 11:00 a.m. This was unfortunate,
but standing by itself has no legal effect on anything. Plaintiff
could have waved the delivery contractor off, but he did not.
When the tractor was loaded on the trailer the day
before, the roll bar was folded down. The tractor was chained
down for the trip to Portland. When the delivery contractor
arrived, he could not get his truck and trailer up plaintiff’s
driveway. Therefore, he unloaded the tractor on the road and
drove it up the driveway, having no trouble doing so. Human
nature being what it is, the arrival of a tractor created a stir at an
eight year old’s birthday party. I doubt that there was any
serious drinking going on, and if there was it would not alter my view
of the critical evidence. I doubt that there was much criticism
of plaintiff’s purchase of a foreign
manufactured tractor. What I do think is that plaintiff was
distracted and did not pay much attention to an important event and did
not want to send the delivery contractor packing with the tractor with
the party going on. Plaintiff had some experience with fork lifts
and similar equipment and testified that he is mechanically inclined
and perhaps was overconfident, particularly given that the Sales
Manager and the delivery contractor made representations that the
equipment was easy to operate. At this point, plaintiff made
another mistake. He gave the delivery contractor the check, thus
effectuating a sale. Plaintiff did not exercise due diligence
before he parted with his check. This was the final event that
tilted the economic / legal playing field in favor of Defendant.
Having accepted the tractor, plaintiff has the
burden of proving a breach warranty or entitlement to revoke acceptance
(revocation was timely if there was entitlement). To cut to the
chase, plaintiff did not carry his burdens of proof.
The first next question is whether the tractor has
any defects which substantially impair its value. There are three
defects in question, the roll cage, the throttle, and the swing of the
bucket.
At this point, I want to comment on the question, if
repairs are to be made, where should that happen? In my opinion,
common expectation is that when you buy something movable, and you want
repairs, you bring it back to the place that sold it; they don’t
come to you. That is one of the big weaknesses of buying at low
prices from distant sellers as opposed to at higher prices from your
corner store, and that is also an obvious economic tradeoff. The
discussions and written materials in this case have to be considered in
light of common expectations.
Also, when a consumer buys a piece of farm
equipment, there is a reasonable expectation that the buyer has the
repair and maintenance capabilities associated with running a small
farm, which usually requires at least a modicum of mechanical ability
and a willingness to use it. I might have made different
decisions in this case if plaintiff had attempted some of these repairs
and the tractor still did not work (or arranged for repairs to be made
and it still did not work).
As to the roll cage, it is clear that without
loosening the bolts at the pivot points, the roll bar ears would not
align when delivered. However, I credit testimony that had the
bolts at the pivot points been loosened, the roll bar would have
aligned, and this was an easy task. The testimony of defendant's
president, the Sales Manager and the delivery contractor is that the
roll bar was up the evening before. On the delivery
contractor’s representation that plaintiff could take care of it
later, plaintiff sent the delivery contractor on his way. By the
time plaintiff would have gotten to fixing this problem, he had already
decided he did not like the swing action of the bucket and had a
problem with the throttle. He never followed through with
resolution of the roll bar. I find the roll bar was not
defective; and, even if it had minor problems, they were repairable
with minor effort and did not substantially impair the value of the
tractor.
With regard to the foot throttle, the contention is
that the throttle stuck in the full throttle position. I have had
vehicles with throttle problems and I view them as at least potentially
serious. A throttle problem would implicate the warranty of
merchantability. I doubt that Defendant would deliver a tractor
with a known defect, and they are not accused of that. I find
that by the time the tractor was delivered it had as much as an hour of
operation behind it. the delivery contractor had no problem
driving the tractor up the driveway. The impression that I have
is that the hand throttle overrides the foot throttle. There is a
suggestion that plaintiff did not know how to operate the throttles,
though I do not find that as a fact. Plaintiff got limited
instruction from the delivery contractor, but could have gotten
more. The instruction manual was ‘inadequate.’
At the arbitration hearing, no one explained the cause of the throttle
problem, and I have the impression no one has actually
investigated. There were a number of conjectures, but conjectures
don’t carry the day. The evidence I am left with is that
the throttle stuck, but no explanation of why. In my opinion,
evidence of one event of a problem in operation does not prove a defect
by a preponderance of the evidence. Even if it does, it does not
prove a substantial impairment in value without evidence of some effort
to identify the cause, an idea of the cost of a fix and whether a fix
is certain or uncertain. As I wrote in my opinion on the motion
for summary judgment, I think everything is repairable, and I think
this is particularly true with a foreign manufactured steel
tractor.
With regard to the bucket operation, this implicates
both the warranty of fitness for a particular purpose and the warranty
of merchantability. Here, I find as a fact that one of the
hallmarks of cheap tractors is ‘rougher’ bucket
operation. I find that the bucket operation was rougher, even
much rougher, than plaintiff expected - if he had any expectations
before he sat down and operated it. He also only spent a little
time with it, had no instruction, and basically, in my view, was
unhappy with his purchase. This could have been avoided by: going
to defendant's place of business rather than buying over the internet;
refusing to hand over the check until he had instruction. There
was no independent objective testimony that the operation was
defective. There is no testimony that the operation of this
tractor was worse than others. Understanding the general
uniformity of operation of similarly manufactured objects, without
specific evidence about this tractor I am not convinced that this
tractor’s operation was any different than many others. In
this light, I view the testimony that the bucket operation was
‘wild’ including plaintiff's attorney’s waving arms,
as good faith hyperbole. Thus, I find as a fact or conclusion,
whichever, that it is not proved, by a preponderance of the evidence,
that the bucket operation violated the warranty of
merchantability. This is a question on which plaintiff has the
burden of proof, and the objective evidence does not satisfy the burden.
There was a concession in the pleadings that the
tractor was mis-manufactured. However, in light of the evidence,
I construe that to mean that Defendant had identified a common request
from purchasers for a modification to the bucket operation, for which
Defendant had developed the fix of replacing the hydraulic flow
restrictors with narrower ones. Simply because a seller has
developed a modification to suit the requests of some, even many,
purchasers, does not prove that the uncorrected product is not
merchantable.
Proof of breach of warranty of fitness for a
particular purpose requires evidence that the buyer’s purpose was
communicated to or at least obvious to the seller. The Sales
Manager and plaintiff discussed plaintiff’s needs. What was
proved is those needs were for a tractor to clean up plaintiff’s
2 ½ acre lot, and even possibly to assist in other small real
estate clean up projects. Apparently plaintiff was interested in
price. There is no testimony that plaintiff communicated the need
to have an easy operating tractor; likely he did not even know there
was a difference. I find that it is not proved, by a
preponderance of the evidence that the bucket operation violated the
warranty of fitness for a particular purpose.
In other words, I do not find a breach of any implied warranty.
The only express warranty was to replace
manufacturer’s defective parts, which stated “All new []
tractors have a full 1 year warranty on manufacturer parts
defects.” If I found that the flow restricters were
defective, I would conclude that this language means a ‘full
warranty’ on defective parts, and a full warranty might well
include the obligation to install as well as replace the defective
parts. If Defendant intends something different, the warranty
should be revised, and probably the place for the warranty is not as
one line at the bottom of the invoice that is rarely signed by the
buyer. Revision of the warranty materials should take into
account the MMWA. I have held that the flow restricters were not
defective. Even if they were, the remedy for this breach of
warranty is not revocation of acceptance. There is no prohibition
on a limitation of a UCC express warranty. The measure of damages
for breach of warranty would be the diminution in value or the cost to
cure. On this point, plaintiff had the burden of proof. There was
no evidence of the value of the tractor in its hypothetically defective
condition in 2006, or now, nor was there testimony of the labor cost of
this proposed repair.
Plaintiff’s concerns about liability are not
ill founded, and he realistically did not want to do the repairs
himself. However, concerns about liability for repairs are best
resolved by obtaining repairs from a reputable repair person.
Regarding the Magnuson Moss Warranty Act, the gist
of the Act is that disclaimers of implied warranties on consumer
products are not effective unless an express ‘Full’ or
‘Limited’ warranty is given in compliance with the
Act. While Defendant would be well served on a going forward
basis by use of a MMWA compliant Limited Warranty - which might be
different for each of their product lines, in my opinion as explained
above, Defendant’ attempt to limit its implied warranties was
ineffective as a matter of state law. My finding in favor of
Defendant is not based on a disclaimer of warranties, but rather than
the warranties were in existence but were not breached.
To return to the specific claims and counts, and to summarize my holdings:
First claim for relief, first count
I find that the tractor was not non-conforming,
therefore, there was no right to reject. I also find that the
acceptance was complete on April 29.
First claim for relief, second count
I find that the tractor was not non-conforming, therefore, there was no right to revoke acceptance.
First claim for relief, third count
“Express warranties are created by
affirmations of fact or promises that become "part of the basis of the
bargain." ORS 72.3130(1).” Hanson v. Signer Motors, Inc.,
105 Or App 74, 79, 803 P2d 1207 (1990). However, oral express
warranties are not enforcable in sales of goods of a value in excess of
$500 except under circumstances not found here. ORS
72.2010. I’m not relying on the statute of frauds, just
pointing it out.
I do not find that there were any express
warranties, except that there was a one year parts warranty, which was
not breached. Any statement in the negotiations or on the website
that any warranty that the product was a ‘quality’ product
either was satisfied or is in the nature of puffery and
non-actionable. If the tractor was not ready for immediate use
upon delivery, that arises only from the problem with the throttle and
there was no evidence of the cost to repair or the diminution in value.
First claim for relief, fourth count
I found that the tractor was merchantable.
First claim for relief, fifth count
I found that the tractor met any warranty of fitness for a particular purpose.
First claim for relief, sixth count
There is no such defense as ‘failure of an
essential purpose.’ In the UCC, there is a provision that a
limitation of remedy is invalid if it makes the remedy fail its
essential purpose, ORS 72.7190(2), Young v. Hessel Tractor &
Equipment Co., 99 Or App 262, 782 P2d 164 (1989). but that is not the
issue we are dealing with in this case, because insofar as I have
concluded that in this case Defendant made and did not effectively
limit the implied warranties of merchantability and fitness for a
particular purpose, there is no issue of limitation of warranty to
consider.
First claim for relief, seventh count
Title 15, section 2301(6)(b) provides that:
(6) The term "written warranty" means - * * * (B) any undertaking in
writing in connection with the sale by a supplier of a consumer product
to refund, repair, replace, or take other remedial action with respect
to such product in the event that such product fails to meet the
specifications set forth in the undertaking, which written affirmation,
promise, or undertaking becomes part of the basis of the bargain
between a supplier and a buyer for purposes other than resale of such
product.
Where Defendant issues the invoice and plaintiff signs it, in my
opinion the Invoice just barely meets the requirement of
‘becom[ing] part of the basis of the bargain.’
However, then the question is whether ‘such product fails to meet
the specifications set forth in the undertaking,’ and I have
found that the tractor was not defective.
Title 15 section 2310(d) provides for a civil cause
of action by a consumer for damages, but, because I have found that
Defendant did not breach the warranty I do not have to consider the
scope of the remedies available under the MMWA.
Affirmative defense of no warranties
I reject this defense.
Affirmative defense of limitation of warranty
I reject this defense.
Attorney fees
The only basis for award of attorney fees in this case is 15 USC section 2310(d)(2):
(2) If a consumer finally prevails in any action brought under
paragraph (1) of this subsection, he may be allowed by the court to
recover as part of the judgment a sum equal to the aggregate amount of
cost and expenses (including attorneys' fees based on actual time
expended) determined by the court to have been reasonably incurred by
the plaintiff for or in connection with the commencement and
prosecution of such action, unless the court in its discretion shall
determine that such an award of attorneys' fees would be inappropriate.
This is not a reciprocal attorney fee provision. Therefore, neither party is entitled to recover attorney fees.
Cases cited
I told you that I would consider the cases cited by the parties.
I previously considered Kelly v. Olinger.
Berry v. Lucas, 210 Or App 334, 338, 150 P3d 424 (2006), deals with risk of loss, not an issue in this case.
Blue Sky Forest Products v. New Hampshire
Doors, 63 Or App 307, 663 P2d 813 (1983), deals with rejection for the
wrong reason or based on an inaccurate understanding of the
facts. Again, not an issue in this case.
Lanners v. Whitney, 247 Or 223, 428 P2d 398 (1967)
deals with the right to revoke acceptance. Among other things, it
states “Nevertheless, such acceptance may be revoked where the
nonconformity of the goods to the contract substantially impairs the
value of the goods to the buyer, if the buyer's acceptance was without
discovery of the nonconformity and his acceptance was reasonably
induced either by the difficulty of discovery before acceptance or by
the seller's assurances that the goods conformed to the
contract.” As stated above, I have found that except
possibly for the throttle problem the tractor conformed, and as to the
throttle problem, it did not (at least it was not proved) substantially
impair the value of the tractor. If I have not expressly stated
above, plaintiff’s notice was timely; but he did not have the
rights asserted in the notice.
Can-Key Industries, Inc. v. Industrial Leasing
Corp., 286 Or 173, 593 P2d 1125 (1979), deals with what constitutes
acceptance. The facts of that case are different than the instant
case. I find that in the instant case, physical delivery coupled
with payment constituted acceptance. That did not preclude
revocation of acceptance; however, I found that the facts in this case
did not authorize revocation of acceptance. That case also dealt
with allegations that the purchaser’s use after purported
delivery was inconsistent with rejection; however, plaintiff did not
use the tractor in any manner inconsistent with rejection.
In the context of this case, Oregon Lbr. v. Dwyer
Overseas Timber Products, 280 Or 437, 571 P2d 884 (1977), deals with
the time for revocation of acceptance, which is not an issue in this
case. The same is true of Metro Inv. Corp. v. Portland Rd. Lbr.,
263 Or 76, 80, 501 P2d 312 (1972).
McGinnis v. Wentworth Chevrolet Co., 295 Or 494, 668
P2d 365 (1983), involves the damages available when there is a valid
revocation of acceptance, and the question of whether limited use can
be a ‘re-acceptance.’ Neither is an issue on the
facts of the instant case.
Valley Iron and Steel v. Thorin, 278 Or 103, 562 P2d
1212 (1977), involves who is a merchant. In this case, there is
no question but that Defendant is a merchant. It also involves
the question of what constitutes breach of the warranty of fitness for
a particular purpose. I found that the tractor did not violate
that warranty.
Hardwick v. Dravo Equipment Company, 279 Or 619, 569
P2d 588 (1977) is cited for the proposition that lost profits can be
recovered for breach of warranty. This was not plead or proved.
Wadsworth Plumbing v. Tollycraft Corp., 277 Or 433,
560 P2d 1080 (1970), involves whether continued use of goods can
constitute an acceptance. Plaintiff did not continue to use
the tractor. I found his acceptance occurred when he gave money
for the tractor and there was no right to revoke acceptance.
Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382
(1976), discusses the question of proof of substantial impairment of
the value of goods. As discussed above, I have found that
plaintiff did not prove substantial impairment as a question of
fact. Proof of an unrepaired defect was not enough for me.
Insofar as Melms v. Mitchell, 266 Or 208, 512 P2d
1336 (1973), is relevant, the question was timeliness of revocation of
acceptance. That was not an issue here.
Claxton v. Boothe, 101 Or App 416, 790 P2d 1201
(1990), involves what constitutes a non-conformity and substantial
impairment of value for purposes of summary judgment. It provides
no guidance at trial.
Young v. Hessel Tractor & Equipment Co., 99 Or
App 262, 782 P2d 164 (1989), basically involves remedies where a
warranty fails of its essential purpose. Again, not an issue as I
see it.
Steers Security v. Sportscoach, 99 Or App 363, 781
P2d 1267 (1989), involves what might constitute re-acceptance after
revocation of acceptance. This is not an issue in this case.
Custom Harv. Oregon v. Smith Truck and Tractor, 75
Or App. 274, 706 P2d 186 (1985), involves what constitutes revocation
of acceptance. I have found that the problem in this case for
plaintiff was that there was no right to revoke acceptance.
Crume v. Ford Motor Co., 60 Or App 224, 653 P2d 564
(1982), was mentioned above. It also addresses the issue of
warranties that fail of their essential purpose.
Miller v. Hubbard-Wray, 52 Or App 897, 630 P2d 880
(1981), deals with an attempt to disclaim an oral express warranty, as
to the age of a piece of farm equipment. I did not find any
express oral warranties.
Gaha v. Taylor-Johnson Dodge, Inc., 53 Or App 471,
632 P2d 483 (1981), involved revocation of acceptance, but the issues
in the case are ones of agency.
Clark v. Ford Motor Co., 46 Or App 521, 612 P2d 316
(1980), involves an attempt to revoke acceptance in a situation where
there were no warranties. It is inapposite.
* * *
After all of this, I think the parties in this case
would be well served by reaching some kind of agreement for Defendant
to resell this tractor as a ‘nearly new’ tractor on an
‘as-is, where-is’ basis for the account of Plaintiff, and
everybody move on with their expensive lessons learned.