McGee v. Nashville White Trucks, Inc.

633 S.W.2d 311, 34 U.C.C. Rep. Serv. (West) 65, 1981 Tenn. App. LEXIS 594
CourtCourt of Appeals of Tennessee
DecidedDecember 22, 1981
StatusPublished
Cited by4 cases

This text of 633 S.W.2d 311 (McGee v. Nashville White Trucks, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGee v. Nashville White Trucks, Inc., 633 S.W.2d 311, 34 U.C.C. Rep. Serv. (West) 65, 1981 Tenn. App. LEXIS 594 (Tenn. Ct. App. 1981).

Opinion

ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

(With the concurrence of participating judges, the original opinion has been abridged for publication.)

The plaintiff, Clarence Edward McGee, has appealed from the Chancellor’s decree dismissing his suit against defendant, Nashville White Trucks, Inc., for breach of warranty of a truck, improper repairs and loss of equipment from the truck, and against defendant, Oscar Felts, for negligent repair of a truck radiator.

The memorandum of the Chancellor states:

On May 11, 1979, plaintiff purchased from defendant, Nashville White Trucks, a used reconditioned truck. It had a rebuilt engine carrying a six-months warranty. The radiator had been cleaned as a part of the reconditioning by defendant, Nashville Radiator Service.
Plaintiff drove the truck some two months over-the-road without any problems. On July 28, 1979, plaintiff made a return trip from Ft. Lauderdale, Florida, [313]*313to Chattanooga, Tennessee. Two days later he left for New York hauling a trailer load of steel. Before departure, he checked the radiator coolant with his finger and it was full. The first day of the trip he drove to the Davey Crockett Truck Stop just beyond Knoxville and spent the night. The following morning he again checked the radiator coolant with his finger and found it full. He left the motel and drove between twenty-five and forty miles and noticed the heat gauge was jumping. He did not smell any odor or see any steam. He drove approximately one mile and pulled off the shoulder. He got out of the truck, walked to the passenger side, and noticed steam from the engine. He cut the engine off.
Plaintiff was unable to restart the truck and had it towed to Kingsport, Tennessee. The engine was found to be a complete loss from being run without sufficient coolant. An inspection showed the top radiator tank had a small crack that had been repaired with epoxy.
CONCLUSIONS OF LAW
1. Plaintiff failed to carry the burden of establishing negligent preparation (sic) of the radiator by Nashville Radiator Service.
2. Plaintiff failed to carry the burden of establishing defendants’ negligence was the proximate cause of the engine failure.
3. Plaintiff failed to carry the burden of establishing breach of warranty, breach of bailment contract, or improper repairs.

Appellant’s first issue is general in nature and is comprehended in other issues which will be discussed.

Appellant’s second issue is as follows:

The Court erred in failing to find that the defendant, Nashville White Trucks, Inc., breached its contract of sale and all expressed and implied warranties made to the plaintiff in connection therewith.

The bill of sale from White to Plaintiff contained the following language:

Warranty by Detroit Diesel for Engine 6 month replacement parts warranty on Engine Parts.

There is no other warranty provision in the bill of sale.

White insists that the presence of the above quotation in the bill of sale and the absence of any other written warranties conclusively shows that there were no other warranties.

A dealer is not liable for breach of a manufacturer’s warranty. Wooten Chevrolet Company v. Allen, et al., Unpublished, Tenn.App. Eastern Section, May 23, 1979. However, plaintiff insists that there were express, oral warranties by White. Plaintiff testified as follows:

It was a cabover, newly painted, the engine was rebuilt. Six months warranty or fifty thousand miles, and of course Mike had said when they take trucks in on trade-in or they purchase or buy them there might be some things that needed to be done on it, and assured me if there was anything that we needed to fix or repair it just bring it back and they would take care of it. So we agreed to buy the truck and we bought it for nine-' teen five.

White responds that evidence of oral warranties is inadmissible to add to the written sales agreement. T.C.A. § 47-2-202, cited by White is as follows:

Final written expression — Parol or extrinsic evidence. — Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:
(a) by course of dealing or usage of trade (§ 47-1-205) or by course of performance (47-2-208); and
[314]*314(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. [Acts 1963, ch. 81, § 1 (2-202).]

White cites Somerville v. Gullett Gin Co., 137 Tenn. 509, 194 S.W. 576 (1917); however, that case involved a written contract which recited that the machinery was sold subject to the warranty expressed on the back of the contract and no other, and that no agreement, verbal or otherwise, other than that set forth therein, formed any part of the contract. No such language appears in the bill of sale in the present case. Absent such language, oral representations or warranties which do not contradict the written contract and which were part of the consideration may be proven and enforced. E. I. Du Pont de Nemours & Co. v. E. L. Bruce Co., 174 Tenn. 148, 124 S.W.2d 243 (1939); Gibson County v. Fourth & First Nat. Bank, 22 Tenn.App. 168, 96 S.W.2d 184 (1936).

Nashville White also insists that it has no liability upon the written warranty quoted above which imposes a liability upon Detroit Diesel and not Nashville White. Although Nashville White overhauled the engine to which the warranty applied, Nashville White was the authorized distributor for Detroit Diesel; and it must be assumed that Nashville White had the authority to bind Detroit Diesel and was not bound by the warranty it issued as agent. Hammond v. Herbert Hood Co., 31 Tenn.App. 683, 221 S.W.2d 98 (1949).

Nashville White also insists, correctly, that there is no liability upon the written warranty because there is no evidence of any defect in the engine. There is some suggestion that the radiator was a part of the engine because it was connected with it by hoses and served an indispensable purpose in keeping it cool.

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633 S.W.2d 311, 34 U.C.C. Rep. Serv. (West) 65, 1981 Tenn. App. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-nashville-white-trucks-inc-tennctapp-1981.