W. R. Peterson, J.
Defendant appeals by leave granted from a district court judgment, affirmed on appeal to the circuit court, awarding plaintiff damages
for breach of contract for sale of a new 1979 Dodge pickup truck.
Defendant claims that the trial court erred in finding that it had accepted the truck and in concluding that it had thereafter wrongfully attempted a revocation of the sale. We agree, finding that the evidence shows no acceptance within the meaning of the Uniform Commercial Code, MCL 440.2606; MSA 19.2606, and that defendant had an absolute right to reject the truck, MCL 440.2601; MSA 19.2601.
The evidence shows that on November 8 or 9, 1978,
an officer of defendant, William Washa
baugh, called at plaintiffs place of business to discuss the possible purchase of a pickup truck with a snowplow attachment. The truck in question was of the type desired and plaintiffs salesman, John Fuller, took Mr. Washabaugh for a test drive in the vehicle. Washabaugh liked the truck. However, before the test drive was completed, the engine overheated. There was a conflict in the testimony of Fuller and Washabaugh which was not addressed by the opinion of the trial judge: Washabaugh testified that the temperature gauge was "all the way over” and that there was steam coming from under the hood; Fuller testified that the truck was just running warm, that there was no overheating, and that he saw no steam coming from the engine compartment.
Whichever version is correct, the significant fact is that the topic of engine overheating was specifically addressed by Fuller and Washabaugh. Washabaugh expressed concern about the matter, and indicated past experience with other vehicles suffering engine damage from overheating. Fuller said that overheating resulted from incorrect positioning of the snowplow blade in front of the radiator.* **
Washabaugh was willing to buy the truck if Fuller’s statement was correct. Fuller assured him that that was in fact the case, documents of purchase were executed, and Washabaugh gave Fuller a check for the full payment of the purchase price. They agreed that employees of
defendant would pick up the truck the following day and that they would be instructed on the proper positioning of the plow blade.
On the following day, Stanley Reid and Leon LaFave came to plaintiff’s place of business to pick up the truck for defendant. Fuller personally showed them how to properly position the blade, and it was so positioned in Fuller’s presence before Reid and LaFave left for defendant’s place of business near Potterville. When they arrived there, the engine was overheating and steaming. A mechanic employed by defendant could find no apparent defects from a visual inspection, so a telephone call was made to plaintiff’s office. An employee in plaintiff’s service department advised rechecking the blade position, refilling the radiator, and taking the truck out for another drive. This was done. Reid and LaFave droye to Potter-ville, about two miles from defendant’s place of business, and back. The engine again overheated, the temperature gauge rose to the maximum, and there was an eruption of water and steam.
LaFave again called plaintiff’s office and was told to bring the truck into plaintiff’s service department. He did so, and when he arrived the engine was again overheating and steaming. He was told that the problem might be with a thermostat but that the truck would be ready and could be picked up the following afternoon.
On the next afternoon (the third day, be it November 10 or 11), LaFave went to Lansing and picked up the truck. He was told that a radiator cap had been replaced. By the time he got back to defendant’s place of business, the engine was again overheating. On Washabaugh’s orders, LaFave immediately notified plaintiff by telephone that defendant was not taking the truck, that payment
was being stopped on the check,
and that plaintiff should come get the truck. Plaintiff sent a wrecker and crew that evening and towed the truck back to its lot.
In the following days, plaintiff did nothing to the truck by way of inspection or repair. It was left sitting on plaintiff’s lot. On November 15 or 16, the purchase and registration documents were taken by plaintiff to a branch office of the Secretary of State. On November 15 or 16, plaintiff received notice froni its bank that defendant had stopped payment on the check.
Title to the truck was issued in defendant’s name by the Secretary of State on December 1, 1978. Both parties retained counsel, and defendant made an effort to tender title to plaintiff so the truck could be resold. Plaintiff rejected the tender, taking the position that the transaction was complete and that it could not resell the truck because defendant held title, and commenced this suit.
The opinion of the trial judge is sparse in its findings of fact. As noted in footnote 6, the opinion contains the erroneous finding that defendant returned the truck to plaintiff’s lot, implying that this was done without notice to plaintiff. There are no findings as to when plaintiff submitted the registration documents to the Secretary of State, nor were there findings or discussion of the events bearing on notice of rejection. Rather, the opinion merely states a conclusion that plaintiff received no notice of rejection until after title had been
transferred to defendant, a conclusion which seems to be clearly erroneous. Moreover, the opinion of the trial judge contains no findings of fact, discussion, or conclusion as to an acceptance of the truck by defendant within the meaning of the Uniform Commercial Code, although the conclusion that acceptance had occurred can be implied from the opinion’s statement of the issues as being: (1) whether the defendant had sustained the burden of proving the truck defective so as to justify a revocation after acceptance;
(2) if the truck was defective, whether plaintiff was given an opportunity to seasonably cure the defect;
and (3) whether plaintiff had a duty to resell the truck.
We find the trial judge’s decision on such issues inapposite, holding that on these facts the implied finding that there had been an acceptance of the truck by defendant is erroneous.
The Uniform Commercial Code, § 2-606 (MCL 440.2606; MSA 19.2606), provides:
"(1) Acceptance of goods occurs when the buyer
"(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
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W. R. Peterson, J.
Defendant appeals by leave granted from a district court judgment, affirmed on appeal to the circuit court, awarding plaintiff damages
for breach of contract for sale of a new 1979 Dodge pickup truck.
Defendant claims that the trial court erred in finding that it had accepted the truck and in concluding that it had thereafter wrongfully attempted a revocation of the sale. We agree, finding that the evidence shows no acceptance within the meaning of the Uniform Commercial Code, MCL 440.2606; MSA 19.2606, and that defendant had an absolute right to reject the truck, MCL 440.2601; MSA 19.2601.
The evidence shows that on November 8 or 9, 1978,
an officer of defendant, William Washa
baugh, called at plaintiffs place of business to discuss the possible purchase of a pickup truck with a snowplow attachment. The truck in question was of the type desired and plaintiffs salesman, John Fuller, took Mr. Washabaugh for a test drive in the vehicle. Washabaugh liked the truck. However, before the test drive was completed, the engine overheated. There was a conflict in the testimony of Fuller and Washabaugh which was not addressed by the opinion of the trial judge: Washabaugh testified that the temperature gauge was "all the way over” and that there was steam coming from under the hood; Fuller testified that the truck was just running warm, that there was no overheating, and that he saw no steam coming from the engine compartment.
Whichever version is correct, the significant fact is that the topic of engine overheating was specifically addressed by Fuller and Washabaugh. Washabaugh expressed concern about the matter, and indicated past experience with other vehicles suffering engine damage from overheating. Fuller said that overheating resulted from incorrect positioning of the snowplow blade in front of the radiator.* **
Washabaugh was willing to buy the truck if Fuller’s statement was correct. Fuller assured him that that was in fact the case, documents of purchase were executed, and Washabaugh gave Fuller a check for the full payment of the purchase price. They agreed that employees of
defendant would pick up the truck the following day and that they would be instructed on the proper positioning of the plow blade.
On the following day, Stanley Reid and Leon LaFave came to plaintiff’s place of business to pick up the truck for defendant. Fuller personally showed them how to properly position the blade, and it was so positioned in Fuller’s presence before Reid and LaFave left for defendant’s place of business near Potterville. When they arrived there, the engine was overheating and steaming. A mechanic employed by defendant could find no apparent defects from a visual inspection, so a telephone call was made to plaintiff’s office. An employee in plaintiff’s service department advised rechecking the blade position, refilling the radiator, and taking the truck out for another drive. This was done. Reid and LaFave droye to Potter-ville, about two miles from defendant’s place of business, and back. The engine again overheated, the temperature gauge rose to the maximum, and there was an eruption of water and steam.
LaFave again called plaintiff’s office and was told to bring the truck into plaintiff’s service department. He did so, and when he arrived the engine was again overheating and steaming. He was told that the problem might be with a thermostat but that the truck would be ready and could be picked up the following afternoon.
On the next afternoon (the third day, be it November 10 or 11), LaFave went to Lansing and picked up the truck. He was told that a radiator cap had been replaced. By the time he got back to defendant’s place of business, the engine was again overheating. On Washabaugh’s orders, LaFave immediately notified plaintiff by telephone that defendant was not taking the truck, that payment
was being stopped on the check,
and that plaintiff should come get the truck. Plaintiff sent a wrecker and crew that evening and towed the truck back to its lot.
In the following days, plaintiff did nothing to the truck by way of inspection or repair. It was left sitting on plaintiff’s lot. On November 15 or 16, the purchase and registration documents were taken by plaintiff to a branch office of the Secretary of State. On November 15 or 16, plaintiff received notice froni its bank that defendant had stopped payment on the check.
Title to the truck was issued in defendant’s name by the Secretary of State on December 1, 1978. Both parties retained counsel, and defendant made an effort to tender title to plaintiff so the truck could be resold. Plaintiff rejected the tender, taking the position that the transaction was complete and that it could not resell the truck because defendant held title, and commenced this suit.
The opinion of the trial judge is sparse in its findings of fact. As noted in footnote 6, the opinion contains the erroneous finding that defendant returned the truck to plaintiff’s lot, implying that this was done without notice to plaintiff. There are no findings as to when plaintiff submitted the registration documents to the Secretary of State, nor were there findings or discussion of the events bearing on notice of rejection. Rather, the opinion merely states a conclusion that plaintiff received no notice of rejection until after title had been
transferred to defendant, a conclusion which seems to be clearly erroneous. Moreover, the opinion of the trial judge contains no findings of fact, discussion, or conclusion as to an acceptance of the truck by defendant within the meaning of the Uniform Commercial Code, although the conclusion that acceptance had occurred can be implied from the opinion’s statement of the issues as being: (1) whether the defendant had sustained the burden of proving the truck defective so as to justify a revocation after acceptance;
(2) if the truck was defective, whether plaintiff was given an opportunity to seasonably cure the defect;
and (3) whether plaintiff had a duty to resell the truck.
We find the trial judge’s decision on such issues inapposite, holding that on these facts the implied finding that there had been an acceptance of the truck by defendant is erroneous.
The Uniform Commercial Code, § 2-606 (MCL 440.2606; MSA 19.2606), provides:
"(1) Acceptance of goods occurs when the buyer
"(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
"(b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur
until the buyer has had a reasonable opportunity to inspect them; or
"(c) does any act inconsistent with the seller’s ownership; but if such an act is wrongful as against the seller it is an acceptance only if ratified by him.
"(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.”
This language, in defining what constitutes an acceptance, clearly contemplates an act of the buyer beyond taking delivery or possession of the goods. Possession during the time necessary for the "reasonable opportunity” to inspect is contemplated prior to acceptance. Similarly, § 2-602 of the code
allows a rejection of goods for nonconformance "within a reasonable time
after their delivery”.
Thus, while transfer of possession or title may be acts bearing on the question of acceptance, they are not in themselves determinative thereof. White & Summers, Handbook of the Law Under the Uniform Commercial Code (2d ed), § 8-2, p 296.
In
Colonial Dodge, Inc v Miller,
116 Mich App 78, 322 NW2d 549 (1982), a majority of the Court adopted the holding in
Zabriskie Chevrolet, Inc. v Smith,
99 NJ Super 441; 240 A2d 195 (1968), a case in which a newly purchased automobile became inoperable as the purchaser was driving it home from the dealer’s showroom.
Zabriskie
is pertinent for two reasons. In the first place, when dealing with acceptance under the UCC, it speaks to the relationship between the manufacturer and seller of complex machines or
devices on the one hand and the dependent buyer on the other hand. The buyer may be expert in the use of the machine or device but he generally has no expertise as to the mechanical, electronic, chemical, and engineering components that combine to produce the intended performance.
Zabriskie
recognized this buyer dependency on the seller’s expertise in holding that something more than a mere visual inspection is appropriate before the buyer can be held to have accepted the machine. We agree. A "reasonable time to inspect” under the UCC must allow an opportunity to put the product to its intended use or for testing to verify its capability to perform as intended.
Zabriskie
is also important for its holding that the adoption of the Uniform Commercial Code, § 2-601,
which provides that the buyer may reject goods which "fail in any respect to conform to the contract”, creates a "perfect tender” rule replacing pre-code cases defining performance of a sales contract in terms of substantial compliance. We agree with that construction of the code.
In
Colonial Dodge,
the majority held that lack of a spare tire for a passenger car constituted nonconformity warranting rejection. On rehearing, 121 Mich App 466, 328 NW2d 678 (1982), a majority reversed the original decision on the ground that there was evidence to support the finding of an acceptance by the buyer, so that the question was not one of rejection but whether the nonconformity substantially impaired the vehicle’s value to the buyer so as to justify revocation. The trial judge’s determination that, in fact, the vehicle’s value was not substantially impaired was affirmed, requiring reversal of the result arrived at by
Colonial Dodge I.
That reversal was not an abandon
ment of the construction of the Uniform Code expounded in
Colonial Dodge I,
and this Court in
Colonial Dodge (On Rehearing)
expressly distinguished its holding from the result reached in
Zabriskie
where there had been no acceptance.
In the instant case, there was no acceptance.
Nothing that defendant did can be construed under § 2-606(l)(a) as signifying, after a reasonable opportunity to inspect, that the truck conformed or that defendant would retain the truck in spite of its nonconformity. Defendant had the absolute right to reject the truck for nonconformity within a reasonable time, and to seasonably notify the plaintiff thereof. MCL 440.2602; MSA 19.2602. It did so.
Reversed and remanded for entry of judgment in favor of defendant. Costs to defendant.