Summary
In Woods, the seller did not remedy the defect, and the buyer revoked acceptance, which the court permitted, holding that "`[t]he purchase of the vehicle in an `as is' condition based upon a representation that the car was in good condition and ran properly was fundamental to the consideration on which the sale was predicated.'"
Summary of this case from Frank Griffin Volkswagen v. SmithOpinion
No. 81-356
Decided April 2, 1982
Vendor and Purchaser — Representations — Inaccurate Representations In a contract action brought by the buyer of a used car, who had purchased the car in an "as is" condition, without guarantee, under a brief and informal purchase and sale agreement, and immediately after the sale experienced difficulties with the car, and where the master found that he reasonably recovered part of the purchase price by selling the car for salvage after the seller refused to cure the non-conformity of the goods, the award of the trial court was proper where the master concluded that the car was not fit for its intended use at the time of the sale, that the buyer had effectively rejected it or revoked his acceptance of it under the statute governing revocation of acceptance, and that the purchase of the vehicle in "as is" condition based upon representation that the car was in good condition and ran properly was fundamental to the consideration on which the sale was predicated. RSA 382-A:1-203, 2-608.
Arthur Olson P.A., of Keene (Edward J. Burke on the brief and orally), for the plaintiff.
William H. Kennedy, of Keene (Lawrence G. Brann on the brief and orally), for the defendant.
MEMORANDUM OPINION
In this contract action, the defendant appeals from a verdict in the amount of $600 awarded the plaintiff by the Superior Court (Contas, J.) upon recommendation of the Master (Mayland H. Morse, Jr., Esq.).
The dispute between the parties arose out of the plaintiff's purchase of a 1965 Pontiac GTO. The sale took place at the defendant's residence in West Swanzey on November 9, 1979, for $1,300. Immediately after the sale, and even before the automobile reached the Massachusetts border, the plaintiff experienced difficulties with it. On the evidence before him, the master concluded that the automobile was not fit for its intended use at the time of the sale, and that the plaintiff had effectively rejected it or revoked his acceptance of it under RSA 382-A:2-608, and had reasonably recovered the sum of $600 by selling the auto for salvage after the defendant refused the opportunity extended him to cure the non-conformity of the tendered goods.
The defendant argues that because the brief and informal purchase and sale agreement between the parties stated that the plaintiff purchased the automobile in "as is" condition without guarantee, the plaintiff cannot prevail. The master, however, specifically found that "[t]he purchase of the vehicle in an `as is' condition based upon representation that the car was in good condition and ran properly was fundamental to the consideration on which the sale was predicated." (Emphasis added.)
Because the evidence below supports the decision of the master, and we find no other error, we affirm. See RSA 382-A:1-203; McCarthy v. Barrows, 118 N.H. 173, 175-76, 384 A.2d 787, 788 (1978).
Affirmed.