Opinion
No. 4589.
Argued October 1, 1957.
Decided November 5, 1957.
1. Under the Uniform Sales Act (RSA 346:69 I(d)) a buyer of goods is given the right to rescind the sale and obtain restitution for the amount paid the seller where the latter has breached his warranty.
2. Furnaces and heating equipment are "goods" within the meaning of the Uniform Sales Act (RSA 346:76 I).
3. To entitle the buyer to rescission after acceptance of the goods he must return or offer to return them to the seller in substantially as good condition as they were at the time the property was transferred to the buyer and notice of the buyer's election to rescind must be given the seller within a reasonable time.
4. Notice by a buyer of his election to rescind a contract for the sale of goods for breach of warranty after his acceptance of the goods need take no special form and is sufficient if the seller is given timely information in writing or orally that the buyer holds him responsible for breach of his warranty and the question of timeliness of such notice is one of fact for the Trial Court.
5. Evidence that the buyer had no knowledge of oil-burning furnaces and relied upon the seller's judgment to install one reasonably fit for the purpose of heating the buyer's residence was sufficient to establish an implied warranty of fitness.
6. A finding of an implied warranty of fitness was not precluded by the fact that the contract for the installation of such heating equipment was in writing where the contract contained no reference to such warranty.
7. The fact that the buyer's promissory note for the purchase price of the goods, assigned to a third party, has not been fully paid does not preclude maintenance of the action to recover the purchase price from the seller but to protect the seller judgment should be conditioned upon full payment.
ASSUMPSIT, for a breach of contract to recover the purchase price paid by the plaintiffs for a certain warm-air furnace installed by the defendant in the plaintiffs' residence, which the plaintiffs claim was not suitable and did not conform to the warranties made nor to the services promised. Trial by the Court resulted in a verdict for the plaintiffs for the purchase price. Defendant's exceptions to the denial of motions for a nonsuit and a directed verdict and to the denial of his motion to set aside the verdict were reserved and transferred by Wheeler, C. J.
The plaintiffs executed on June 5, 1950, a promissory note in the amount of $454.16 payable to the defendant for the purchase of an oil-burning furnace. The note was assigned by the defendant to a bank which finally assigned it to the United States of America, pursuant to provisions of Title I of the National Housing Act. The plaintiffs made two payments on the note to the bank of $12.62 each, and then discontinued making payments because they claimed that the furnace backfired on two occasions and failed to function. The plaintiffs' evidence indicated that the furnace failed to work properly from the time its operation was commenced in October, 1950, and that they had written several letters to the defendant requesting that it be placed in operating condition or be removed. The defendant testified that he did not remember receiving any complaints or letters from the plaintiffs. Subsequently on March 1, 1955, the United States recovered judgment against the plaintiffs on the note upon which the plaintiffs have made partial payment. Thereupon, the present action was instituted. Additional facts appear in the opinion.
Morse, Hall, Morse Gallagher for the plaintiffs, furnished no brief.
Myer Saidel (by brief and orally), for the defendant.
The Uniform Sales Act gives the buyer of goods a right to rescind the sale and obtain restitution for the amount paid the seller on the ground of breach of warranty. I A Uniform Laws Annotated 295; RSA 346:69 I(d). Furnaces and heating equipment are "goods" within the meaning of the Uniform Sales Act and are governed by its provisions. Parker v. Morgan, 170 Md. 7; RSA 346:76 I. See Francoeur v. Stephen, 97 N.H. 80. Where, as in the present case, rescission takes place after acceptance, the buyer must return or offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer and the buyer must "notify the seller within a reasonable time of the election to rescind." RSA 346:69 III.
Whether the plaintiffs gave the defendant notice of the breach of warranty within a reasonable time after the breach was a question of fact for the Trial Court. Russell v. Stores, 96 N.H. 471; RSA 346:49. The trier of fact could believe the plaintiffs' evidence that after the furnace was first used in October, 1950, it backfired or "blew up" once in December, 1950, and again in January, 1951, that "it went out . . . practically every time we lit it" and that the plaintiffs wrote several letters of complaint. There was also evidence from which the court could find that the plaintiffs offered to return the furnace. The Trial Court was not compelled to accept the defendant's testimony that he received no complaints and had no notice of them until the present suit was instituted in 1955. While the plaintiffs did not retain copies of their complaints and did not specify the dates on which they were written, their testimony was sufficient to support the implied finding of the Trial Court that notice of the breach of warranty was given within a reasonable time after the furnace was first used in October, 1950. Lyford v. Academy, 97 N.H. 167, 169.
The defendant's contention that notice of the breach of warranty must be a written notice "personally served on the person to be notified" (seller) is not supported by the authorities. 3 Williston, Sales (Rev. ed. 1948) s. 484b; anno. 53 A.L.R. (2d) 270. "Such notice need take no special form . . ." (Hazelton v. First Nat. Stores, 88 N.H. 409, 412) and it is sufficient if the notice, whether written or oral, gives the seller timely information that the buyer holds him responsible for the breach of warranty. Mastercraft Wayside Furniture Co. v. Sightmaster Corp., 332 Mass. 383; Johnson v. Hoffman, 7 N. J. 123.
The contract between the parties contained the following provisions: "Installation will be made in conformity with all local, state, and Underwriter's requirements, and will be made in a neat, workmanlike manner. All materials and workmanship will be guaranteed for a period of one year from date of installation."
The record discloses that the plaintiffs knew nothing about oil-burning furnaces and relied on the defendant's judgment in installing one reasonably fit for the purpose of heating the plaintiffs' residence. This evidence was sufficient to establish an implied warranty of fitness (RSA 346:15 I; Clover c. Co. v. Smith Co., 96 N.H. 491) and was in no way precluded by the express provisions of the contract. RSA 346:15 VI. The defendant cites Baranowski v. Linatsis, 95 N.H. 55, but that case is clearly distinguishable and held that there could not be an implied warranty of title under RSA 346:13, where the express provisions of the contract specifically disclaimed any warranty by implication. In so far as there is support in Rollins Engine Co. v. Forge Co., 73 N.H. 92, decided in 1904, for the defendant's contention that there can be no implied warranty in a written contract of sale, it is no longer an authority since the adoption of the Uniform Sales Act in this jurisdiction in 1923. Furthermore, it was contrary to the weight of authority even prior to the adoption of the Uniform Sales Act. 4 Williston, Contracts (Rev. ed.) s. 989, p. 2722, note 3; 1 Williston, Sales (Rev. ed. 1948) s. 235, p. 606-607, note 7.
The plaintiffs' note for the purchase price has been merged in a judgment in favor of the United States which has not been fully satisfied by the plaintiffs. This does not preclude the plaintiffs from recovering in this action but to protect the defendant the judgment in the present action should be conditioned upon the filing of evidence of the satisfaction of the judgment in favor of the United States. Holden v. Advance-Rumely Thresher Co., 61 N.D. 584, 598; Weaver v. Blochberger, 31 Wn.2d 877; cf. Copeland v. Reynolds, 86 N.H. 110.
Since the record supports the Court's judgment and there is no error of law the defendant's motions for a nonsuit and a directed verdict and his motion to set aside the verdict were properly denied.
Exceptions overruled.
WHEELER, J., did not sit; the others concurred.