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Show MONDAY, NOV KMBEl 14,1974 INTEKMOUNTAIN COMMERCIAL RECORD PAGE TEN In the Supreme Court of The Chryiler till the time you filed your cross -- complaint you wanted to keep the trailer, is that correct? Q And, okay, up CrecV: Corporation. Plaintiff. A I was trying to get the payment down v. Q And what payment could you meet? Defendant. Third-Part- y Plaint if and Respondent. No. 13580 1 A FILED v. 8-- Motor Company. Inc. S. . a kept the trailer? A Third Party Defendant -- Allan E. Mechaxn. Clerk and Appellant. ELLETT, Justice: , Mr. Burns bought a mobile trailer from the U. 8c S. Motor Company, Inc. , and signed a contract, whereby he promised to pay therefor the sum of $126. 21 per month for 36 months, and in addition thereto he was to be given top blue book credit for a car which he traded in on the deal. The contract provided: . No. 70A-2-31- (1) . . . (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example,' that "there are no warranties which extend beyond the description on the face hereof." (3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the. exclusion of warrantees and makes plain that there is no implied material and workmanship. The contract was assigned to the plaintiff. After Mr. Burns was nine payments in arrears, the plaintiff brought an action to recover possession of the trailer, so that it might be sold, and to determine the amount remaining unpaid, if any, after application of the proceeds of sale to the unpaid balance as provided in the contract. Mr. Burns refused to deliver possession of the trailer and by answer stated: warranty; and Defendant admits that ho has refused to make payments on said contract and has refused to deliver possession of said trailer to Plaintiff or anyone else for the cause and reason that the said trailer, by reason of a breach of warranty on the part of the seller and the defendant, U 8r S Motor Company, was not fit for the purpose of its intended use, and the Defendant did refuse to make any further payments until such time as the defects Since the language of the contract specifically excluded all warranties except those written in the contract, it appears that the implied warranty of fitness was excluded. That by reason of said breach of warranty, the Defendant was damaged to the extent of the $2260 paid on said trailer and an additional sum in the amount of $2500 by reason of the inconvenience, expense, and loss of use of said trailer. In this case Mr. Burns kept the trailer and equipment for over two years and never once gave notice of rejection or desire to rescind the contract. 2. were corrected. . . . 5. . Our statute provides that a buyer of goods accepts them unless he gives notice of rejection to the seller within a reasonable time after delivery to him. 1 The statute further provides that the buyer accepts the goods if he fails to Make an effective rejection after he has had a reasonable opportunity to in2 spect them. The WHEREFORE, Defendant prays judgment restraining the Plaintiff from taking possession of said trailer andor selling the same and for judgment against U 8c S Motor Company, Inc. , for $2260 special damages and $2500 general damages, and for a reasonable attorney's fee and costs of court, and such other and further relief as the Court deems just and proper. rescission of the contract. He merely claimed the because trailer did not seem to him to be fit for the purposes for damages which it was sold, to wit: a stationary home. Defendant, U. One sympathizes with Mr. Burns. He was a disabled war veteran without a home or a job. He told the U. 8c S. Motor Company, Inc. , that his monthly salary was $460 when he was arranging for the purchase of the trailer. The fact was that at that time he had no salary at all. At trial he testified that he was expecting a pension in that amount. However, his pension, which was his sole source of money when it came, amounted only to $179 per month. It was not to this action. While Mr. Burns was testifying at trial the following questions and answers trailer? tell U 8c 3. Plaintiff Burns is entitled to the y Defendant U. 8c S. Motor judgment against Inc. for of costs , suit. Company, No. 13606 October 25, 1974 Hansen, Defendants and Appellants. Third-Part- y Third-Part- In so concluding, the trial court erred. The judgment is reversed and the case remanded with directions to order a sale of the trailer and to determine the amount of deficiency, if any, together with attorney fees and costs, as prayed for in the complaint on file herein. No costs are awarded on appeal.' E. R, FILED John Frank Pace and Milton E. That the S Motors to take back he tried to get me to do that, he met me up in the trying to borrow money to make the payment, he met me up in the bank and he says, "Are you trying to tell me to take it," and I said, "Absolutely not." v. S. Motor Company. WE CONCUR: A No, bank, I was The State Of Utah, Plaintiff and Respondent, 8c 2. That the Third-Part- y Defendant, U. 8c S. Motor to an offset against said judgentitled Inc. is , Company, ment in the amount of $883. 47 as rental for a period of seven (7) months that the said Defendant Burns had the use and benefit of said trailer. were recorded: Q Mr. Burns, did you ever concluded: ty He did not ask for a sufficient for him to make the payments as promised, and he became in arrears and made repeated promises to pay. Once when he could not pay the plaintiff, he let the president of the U. 8c S. Motor Company, Inc. , take a rifle as security if the president would make two payments on the trailer. The payments were made, and thereafter Mr. Burns paid $10 towards redemption of the rifle. The president of the U. L S. Motor Company, Inc. , is not now and never was a party trial court 1. That the Defendant and Third-ParPlaintiff Burns is entitled to judgment against the Third-Part- y Defendant, U. 8c S. Motor Company, Inc., and Plaintiff, Chrysler Credit Corporation, rescinding the conditional sales contract entered into between the parties and is further entitled to judgment based upon said rescission in the amount of $2, 388. 81 together with interest thereon from the date of filing of the complaint and further for a return of the rifle given to the Third-Part- y - the - Although the contract provides that there were no warranties, etc. , except those in writing and incorporated therein, the trial judge was of the opinion that there was a warranty of fitness for the purpose for which Mr. Burns intended U. C. A. 1953 5, to use the trailer, by reason of the provisions of Section as amended (Replacement Volume 7B). The next section of the statute provides: warranties, express or implied, and No warranties were written thereon except as to defective I would have had to live someplace. Mr. Burns left the trailer for some time, and as a result the water lines froze and ruptured. He made many complaints about the defects in the trailer and its equipment. However, he never demanded rescission at anytime, and it is rather obvious that he wanted to keep the trailer as a home in which to live. no reprebeen made or statements have by Seller sentations, promises in unless endorsed hereon writing. . . I told him $50. 00 a month. Q And if you could have paid $50. 00 a month you would have October 29, 1974 Utah corporation. ) to where I could meet them. Gilbert E. Bumf U. State of Utah Allan E. Mecham, Clerk HENRIOD, Justice: Appeal from burglary and grand larceny convictions where both were sentenced on the burglary only. Affirmed. On a gray morning, in the white snow, defendants were caught red- - Callister, Jr., Chief Justice J. Allan Crockett, Justice 1. 2. Section Section 70A:2-6070A-2-606(l)(- b), 2, F. Henri Henriod, Justice R. L. Tuckett, Justice U. C. A. 1953 as amended (Replacement Vol. U. C. A. 1953 as amended (Replacement 7B). Vol.. 7B). handed within a locked chain link fence topped with rows of barbed wire, where they obviously had broken the close, the silence of the night, and apparently a door and window. Such strange circumstances almost inconceivably tripped a burglar alarm that worked, alerting a caretaker next door to the industrially burglarized property. He called the police. They arrived minutely, entered the premises after the alert caretaker had unlocked the gate. They, the police, arrested defendants inside the close, or the enclave, whichever. Neither defendant denied these facts, nor did he assign insufficiency of the evidence as to the burglary. Defendants filed separate briefs in which they urged that the court erred in 1) not declaring a mistrial because of Jnattentiveness or drowsiness of jurors and 2) giving an oral instruction to the jury when its foreman, after retiring to deliberate, asked the court a question as to pertinency of certain evidence. The defendant Hansen urged three additional points.. Only one, (not at all dispositive), we consider as being worthy of some comment, vis: 3) failure to grant a separate trial. |