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Blankenship v. Northtown Ford

OPINION FILED APRIL 16, 1981.

MICHAEL D. BLANKENSHIP ET AL., PLAINTIFFS-APPELLEES,

v.

NORTHTOWN FORD, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Macon County; the Hon. JERRY L. PATTON, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Michael Blankenship and Karen Blankenship, purchased a new 1979 Ford Bronco in September 1978, from defendant, Northtown Ford, Inc. (dealer), for a purchase price of $10,217. The car was manufactured by defendant, Ford Motor Company (manufacturer). The manufacturer provided plaintiffs with a 12-month/12,000 mile warranty on the vehicle by which the manufacturer warranted that it would "repair or adjust any parts * * * found to be defective in factory materials or workmanship." From September 17, 1978, when plaintiffs took possession of the automobile, until the latter part of January 1979, the plaintiffs brought the automobile to the dealer on 11 separate occasions for repairs. Plaintiff Michael Blankenship testified at trial to the history of problems the plaintiffs experienced with the vehicle. He had experience and an educational background in automobile repair and testified based upon his expertise. His testimony as to the repairs performed was fully corroborated by the work orders enumerating the work to be performed on the vehicle which the dealer drafted for its repair shop.

At the time plaintiffs took possession of the automobile, Michael Blankenship road-tested the vehicle and noticed a "clunking noise" in the drive train which the salesman at the dealership said he would check. Thereafter the vehicle was first returned to the dealer on September 28, 1978, when the car had 740 miles on its odometer because a front shock absorber had come loose, the car was leaking oil, and when in motion there was a clunking noise in the drive train (the same noise plaintiff had previously told the dealer's salesman about), and there was a jerking feeling in the steering as one drove the car.

On October 3, 1978, Michael brought the car to the dealer to replace the alternator belt. At that time the drive train noise had resumed and a clutch adjustment was needed. When plaintiffs returned to the dealer to get the car after the repairs had been performed, the clutch was so maladjusted that Michael could not drive the car, and the shop foreman then adjusted the clutch for him.

On October 16, 1978, Michael returned to the dealer's repair facilities because the drive shaft of the vehicle had broken, making it inoperable. The work order stated that a "clunking noise" had again been reported. On October 25, 1978, plaintiffs once again returned the vehicle to the dealer to repair the drive shaft which had fallen out of the car. On October 31, 1978, Michael took the vehicle into the dealer to repair an oil leak. On November 1, 1978, he returned the vehicle to the dealer again for repair of the drive shaft which again had broken. On November 7, 1978, he again returned the car to the dealer; the drive shaft had broken once again and the automobile had a bad oil leak. On November 15, 1978, Michael again brought the vehicle to the repair shop. He stated that there had been a vibration in the car after its prior repair and the vibration got very bad and finally the U-joint broke and the car was inoperable. Michael took the car to the dealer again on November 29, 1978, for repair of the drive shaft which had again fallen out. He stated that at that time the dealer put in new U-joints, changed both rear springs, and changed the horn of the vehicle. On December 18, 1978, Michael returned the vehicle to the dealer for the installation of a rear drive shaft which again was out. On January 11, 1979, he took the vehicle back to the dealer because the drive shaft was again out and there were also problems with the differential and the radio. On January 25, 1979, Michael again brought the car in for repairs. The drive shaft was out again and the dealer repaired the radio at that time, in addition to which there was a problem with one brakeline which had bent when the drive shaft fell out.

Michael testified that during the time he possessed the car he was not able to use if for the normal use for which it was purchased because the possibility of the U-joints breaking made the car dangerous to drive at even normal city driving speeds. At highway speeds, if the U-joints were to break, Michael stated that that could cause the car to overturn.

Plaintiffs finally (apparently) returned the automobile to the dealer, after which, in April 1979, they filed suit against both the dealer and the manufacturer, seeking rescission of the sales contract based upon section 2-314(2)(c) of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1979, ch. 26, par. 2-314(2)(c)). Plaintiffs alleged the defendants breached the implied warranty of merchantability by selling plaintiffs a vehicle which was not fit for the ordinary purposes for which such goods are used. Plaintiffs sought, as damages, the recovery of the purchase price plus interest paid and consequential damages. At the bench trial which followed, plaintiff Michael Blankenship was the only witness, and he testified from his expertise as to the various problems with the vehicle previously enumerated. He also testified that no one except the dealer ever repaired or attempted to repair the vehicle. Neither defendant cross-examined Michael nor presented any evidence on their own behalf. The trial court entered judgment in favor of the manufacturer and returned a judgment in favor of the plaintiffs and against the dealer, Northtown Ford, Inc., for $11,024.94, from which judgment the dealer appeals.

The sole issue on appeal is whether defendant-dealer's contractual disclaimer of implied warranties bars plaintiffs from rescinding the sale based upon the delivery of a defective automobile. We affirm.

Plaintiff's rescission action is grounded in section 2-608 of the UCC which provides:

"(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(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. It is not effective until the buyer notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." Ill. ...


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