Cross v. Rial

Paul Ward, Associate Justice. The question presented on this appeal is whether or not appellant waived his right to rescind the purchase of a pickup truck from appellee. On November 26, 1955 appellant purchased a new 1956 pickup truck from W. W. Rial, appellee, who is the sole owner of the Rial Motor Company of Mc-Gehee, Arkansas. After a down payment of $977.48 (consisting of a trade in for $600 and $377.48 cash) the balance of the purchase price amounted to $2,747.52, payable as follows: $791.09 on May 25, 1956; $1,107.83 on November 25, 1956; and $875.64 on May 25, 1957. The Rial Motor Company (appellee) retained title to the said pickup truck in a Conditional Sales Contract executed by it and appellant on the date above mentioned. Approximately one-third of the total purchase price mentioned above was for a four-wheel drive attachment manufactured and marketed under the trade name “Ñapeo Powr-Pak.” According to the understanding of appellant and appellee the four-wheel drive equipment was installed by the Dealers Truckstell Company in Memphis, Tennessee, at which place appellant was to, and did, accept delivery of the pickup truck after the installation had been made. A short time after appellant accepted delivery of the picknp truck he noticed that the four-wheel drive equipment was not operating satisfactorily. He made several attempts, by taking the truck to appellee’s garage and to other garages, to correct the defects. Finally after having driven the truck 6,288 miles he voluntarily left it parked on appellee’s premises some time near the end of April, 1956. When the first payment became due on May 25, 1956 under the terms of the Conditional Sales Contract, appellant refused to make payment and appellee brought this action in the circuit court to collect the balance of the purchase price. After hearing all of the testimony the trial judge, sitting as a jury, rendered judgment in favor of appellee and against appellant in the amount prayed for. For a reversal of said judgment appellant prosecutes this appeal. Much space in the able briefs of both parties is devoted to the question of whether or not, under all of the facts and circumstances attending the purchase of the equipment by appellant, there existed an implied warranty on the part of appellee that the four-wheel drive equipment, when installed on the truck, would operate satisfactorily for the purpose for which it was purchased. It may be admitted for the purpose of this opinion that the four-wheel drive installation was defective and that it did not do the job for which it was purchased. However it is not necessary, and it would serve no useful purpose, for us to resolve the question above posed, because we have reached the conclusion that the judgment of the trial court must be sustained on the ground, assigned by the trial judge, that appellant waived his right to rescind the sale. The trial court, after setting out the facts as it found them to exist, made the following conclusion of law: “Defendant waived any possible right to rescission by executing the contract to purchase the truck at a time when he had actual knowledge of the fact that it had an objectionable feature, by failing and refusing to permit Dealers Truckstell Sales, Inc., to service the- 4-wheel drive accessory, by driving the truck 6,288 miles, by permitting others to work on the truck, -and by requesting Plaintiff to sell the truck for him and stating that he would pay the difference if there was any loss.” The testimony, which is virtually undisputed, relating to appellant’s waiver of the right to .rescind is essentially and substantially as hereafter set out: Before appellant went to appellee’s place of business to purchase a pickup truck equipped with four-wheel drive mechanism, he had already seen advertisements put out by the Napco Company describing Powr-Pak; At the time he closed the deal with appellee he understood that the four-wheel equipment would have to be installed by the Truckstell Company in Memphis, Tennessee, and; He was aware that the equipment was relatively new, that appellee did not install the equipment, and that appellee would not make a profit on the sale of the extra equipment. It is not disputed that the four-wheel drive mechanism did not function satisfactorily and efficiently, probably for the reason that it was not properly installed. As appellant was driving the truck (with the equipment installed) from Memphis he noticed what he considered to be too much vibration yet he went to appellee’s place of business one or two days later and signed the sale agreement without making any objections. The record shows that appellant on different occasions had repairs made on the truck by the Rial Motor Company and others- but it is not shown definitely on what dates the repairs were made or exactly what objections were made to appellee, if any. It was shown that on.or about the middle of February 1956 the Rial Motor Company installed two universal joints in the truck and that appellant paid for them. Again it is not shown what objections were made to appellee on this occasion. It is' not denied that the truck (with the four-wheel drive equipment) was not functioning properly and that this fact was made known to appellee. The record further discloses that appellee advised appellant to take the truck to Memphis in order that the Truckstell. Company might try to-correct the defects, but-for some -reason appellant failed or refused to do so. Appellee offered to take the truck to the Truckstell Company at Memphis, at his own expense, to have the defects remedied, hut appellant would not consent, giving as his reason (according to Mr. Rial) that “he didn’t believe they could fix it.” The record does not disclose that appellant at any time, even at the time of the return of the truck to appellee, after having used it 4 months, made the specific contention to appellee that there had been a breach of ivarranty or that he desired specifically to rescind the sale. For instance appellant, at one time, testified: “I told them it was vibrating, it wasn’t right, it was hard to steer, the whole thing, but I never did bring it in and set it doAvn and say, ‘here it is, it has got to be fixed.’ ” On another occasion appellant stated: “. . . the first complaint that I ever talked to them about was the clutch slipping when I got it . . .” In regard to the offer to take the truck to Memphis for repairs, Mr. Rial testified: Q. “Did he refuse to let you take it up there?” A. “He (appellant said he just wanted to trade the truck and get something he wanted better than, he would like better than the truck.” Moreover appellant offered to reimburse appellee for any loss incident to another trade. Ark. Stats. § 69-1469 offers a choice of remedies-for the buyer to pursue where there is a breach of-warranty by the seller. The facts disclosed heretofore place this case under the provisions of sub-section (3) of the above statute. This sub-section provides that:- “Where the goods have been delivered to the buyer he cannot rescind the sale . . . if he fails to notify the seller within a reasonable time of the election to rescind ...” As was held in Logue v. Hill, 218 Ark. 797, 238 S. W. 2d 753, the determination of whether the buyer has-made an election to rescind within a reasonable time depends on testimony. In other words' it presents a question of fact for a jury. In the case under consideration the determination of the fact question against appellant by the trial judge, sitting as a jury, must be sustained if it is supported by substantial evidence. It is our conclusion that there is substantial evidence in this case to support the findings of the trial court and its judgment is therefore affirmed. Affirmed. Justice Robinson dissents.