Stroh v. American Recreation & Mobile Home Corp.
This text of 530 P.2d 989 (Stroh v. American Recreation & Mobile Home Corp.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Robert C. STROH and Ann O. Stroh, Plaintiffs-Appellees,
v.
AMERICAN RECREATION AND MOBILE HOME CORPORATION OF COLORADO, d/b/a Lakewood of Denver Trailer Sales, Inc., and Schult Mobile Homes Corporation, a foreign corporation, Defendants-Appellants.
Colorado Court of Appeals, Div. II.
*991 Sheldon F. Goldberg, Denver, for plaintiffs-appellees.
Gould, Moch & Bernick, Richard J. Bernick, Denver, for defendants-appellants American Recreation & Mobile Home Corporation of Colorado, d/b/a Lakewood of Denver Trailer Sales, Inc.
Zarlengo, Mott & Zarlengo, Reed L. Winbourn, Denver, for defendant-appellant Schult Mobile Homes Corporation.
Selected for Official Publication.
SMITH, Judge.
Defendants appeal from a judgment awarding rescission to the purchasers of a mobile home. We affirm in part and reverse in part.
On September 5, 1969, plaintiffs purchased from defendant American Recreation and Mobile Home Corporation of Colorado a mobile home which had been manufactured by defendant Schult Mobile Homes Corporation. After signing the purchase agreement, and while inspecting the "Schult Mobile," plaintiffs discovered a number of defects and notified American. They also advised American that they would not acknowledge commencement of the ninety-day warranty period until the defects had been repaired. Plaintiffs paid for the home and took possession of it, upon American's assurance to plaintiffs that the defects would be seasonably cured. They were, in fact, never corrected.
During the next twelve months plaintiffs made numerous trips and phone calls to American in order to have these defects corrected or repaired. However, as found by the trial court, plaintiffs' attempts to get defendants to correct or repair the defects were singularly unsuccessful. In the meantime, the "Schult Mobile" was slowly but surely deteriorating, and periodically plaintiffs gave American additional notice of new defects. Finally on October 12, 1970, plaintiffs gave American notice of all known defects to that date and stated that they were revoking acceptance of the mobile home.
On January 28, 1971, plaintiffs filed a complaint alleging that both American and Schult had breached implied warranties of merchantability and had made false representations in the inducement of the contract. They prayed for rescission of the contract and return of the purchase price. They also asked for exemplary damages of $10,000. American filed a cross-claim alleging that it was merely the seller of the mobile home and that Schult, as manufacturer, was liable for any defects in the manufacture of the mobile home, and demanded judgment against Schult for any amounts for which American should be found liable.
Schult failed to answer within the proper time and a default was entered. Schult's motion to set aside the default was denied. After a trial to the court, on all issues as to American and the issue of damages as to Schult, judgment was entered against both defendants for the purchase price plus interest at the rate of 6% from date of revocation of acceptance. Judgment was also entered in favor of defendant American on its cross-claim against Schult.
The court found, upon the taking of evidence, that Schult had breached its implied warranty that the home was fit for the particular purpose for which it was acquired. See C.R.S.1963, XXX-X-XXX. The court also found that a warranty disclaimer contained in the contract was not effective because it did not comply with the requirements of C.R.S.1963, XXX-X-XXX(2).
I
Schult first asserts that the trial court abused its discretion in not setting *992 aside the default judgment of liability. We disagree. The plaintiffs fully complied with the provisions of 1965 Perm.Supp., C.R.S.1963, 31-9-19(2), which provides for service of process upon certain foreign corporations. Schult admits that proper service was made, but argues, in essence, that the inadvertence and negligence of a secretarial employee was the cause of its lack of knowledge of the service, and urges that such negligence constitutes excusable neglect so that it is entitled to a vacation of the default judgment. The fact that Schult's employee did not make known to Schult the fact that service had been made upon it constitutes neither mistake, inadvertence, suprise, nor excusable neglect. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820. Thus, the trial court did not abuse its discretion in refusing to vacate the judgment.
II.
The remainder of defendants' arguments address the validity of plaintiffs' revocation of acceptance of the home. Schult asserts that because plaintiffs did not revoke their acceptance until approximately one year after they purchased the mobile home, plaintiffs have not revoked within a "reasonable time" and have thereby exercised dominion and ownership over the goods. Therefore, it reasons that under C.R.S.1963, XXX-X-XXX, plaintiffs may not rescind the contract. They also assert that the trial court erred in finding that under this statute there was a "substantial impairment" in value of the mobile home. We disagree.
C.R.S.1963, XXX-X-XXX states in pertinent part:
"(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured. . .
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. . ."
C.R.S.1963, XXX-X-XXX(2) states:
"Acceptance of goods by the buyer precludes rejection of the goods accepted and, if made with knowledge of a nonconformity, cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured . . ."
What is a "reasonable time" during which a buyer can revoke his acceptance under C.R.S.1963, XXX-X-XXX, is defined in C.R.S.1963, XXX-X-XXX(2), as follows: "[A] reasonable time for taking any action depends on the nature, purpose, and circumstances of such action." This is a question of fact and is to be measured by all the circumstances of the case. Irrigation Motor & Pump Co. v. Belcher, 29 Colo.App. 343, 483 P.2d 980.
In the instant case, the plaintiffs purchased the mobile home with knowledge of the existing defects and reasonably relied upon representations by defendants that the defects would be cured. The trial court also found that plaintiffs had made reasonable efforts to have the defects cured before they revoked acceptance, but had not been successful. Under these circumstances, the delay of one year, from date of purchase to date of revocation of acceptance, was not unreasonable.
Under the provisions of C.R.S.1963, XXX-X-XXX(1), a buyer may revoke his acceptance of goods whose nonconformity substantially impairs their value to him. Official Comment No. 2, appended to that statute, states that the question of impairment turns upon whether the nonconformity is such as will in fact cause a substantial impairment of value to the buyer, regardless of the seller's knowledge of buyer's *993
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530 P.2d 989, 35 Colo. App. 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroh-v-american-recreation-mobile-home-corp-coloctapp-1975.