58 Conn. App. 537 | Conn. App. Ct. | 2000
Opinion
The defendant, Mauro Motors, Inc., appeals from the judgment rendered in favor of the plaintiff, Elizabeth Criscuolo, after a trial to the court in this action pertaining to her purchase from the defendant of an allegedly defective used 1992 BMW (vehicle). The plaintiff filed a six count complaint
In its memorandum of decision, the court set forth the following facts. On or about July 13, 1994, the plaintiff entered into a written, retail purchase and sale agreement with the defendant, an automobile dealer, whereby she agreed to buy and the defendant agreed to sell, a used 1992 BMW automobile. Although the agreed cash price was $23,000, the total cash price on delivery, after adjustments, was $24,690.94. The plaintiff allegedly made a down payment of $4690.94 and financed the balance. She took delivery of the vehicle on or about July 16, 1994, when its odometer read 10,120 miles.
From July, 1994, until November, 1994, the plaintiff used the vehicle on weekends. From November, 1994, to February, 1995, the plaintiff kept the vehicle garaged and no one drove it. By March, 1995, the odometer read 14,197 miles. In April, 1995, the plaintiffs husband began to use the vehicle regularly to drive back and forth to work. In June, 1995, the husband noticed what appeared to be severe wear on the tires. As of June 7, 1995, the odometer read 16,613 miles, which was 6500 miles more than when the plaintiff purchased the vehicle. The plaintiffs husband continued to drive the vehicle until September, 1995, when he and the plaintiff ceased using it. By September, 1995, the odometer read approximately 21,000 miles. Thus, from the time of purchase in July, 1994, until September, 1995, the plaintiffs use of the vehicle totaled approximately 11,000 miles.
In June, 1995, the plaintiff, having been apprised of the tire wear problem, undertook certain measures to learn why the problem arose and how it could be corrected. On or about June 7,1995, the plaintiffs husband
In July, 1995, the plaintiff stopped making her monthly payments on the vehicle. She also retained an attorney, who contacted the defendant in June, 1995.
In finding liability for the plaintiff on the first count, the court specifically found the following facts. “At the time of sale the subject BMW was defective in that its frame had been damaged in a prior collision so as to cause the right rear tire and wheel to be misaligned; that such a misalignment could not be corrected other than by straightening said frame to a condition permitting proper alignment of said tire and wheel. . . . The said defect affected the use of said vehicle in that it caused inordinate wear and tear on said tire. . . . The said defect affected the safety of said vehicle in that it affected negatively the handling of said vehicle when operated in wet or slippery conditions. . . . Said defect was not readily apparent by visual inspection at the time of sale. . . . Such defect would not be readily apparent as a result of the ‘safety inspection’ conducted by the defendant at the time of sale. . . . The defendant, its officers, agents and employees were unaware of the existence of said defect at the time of sale and unaware that the subject BMW had suffered damage in a collision prior to sale. . . . The plaintiff was aware of her right to have conducted an independent inspection of said vehicle, pursuant to General Statutes § 42-225 and she declined to do so.” The court found, however, that the failure by the plaintiff to exercise such right of inspection did not constitute an exclusion of the implied warranty under General Statutes § 42a-2-316 (3) (b)
We begin by addressing the appropriate standard of review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).
I
The defendant’s first claim is that the court improperly rendered judgment on a statutory cause of action that the plaintiff did not plead in her complaint or pursue at trial, but that the court instead “imported” into
“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); KMK Insulation, Inc. v. A. Prete & Son Construction Co., 49 Conn. App. 522, 525, 715 A.2d 799 (1998).
“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. ... A plaintiff may not allege
Pursuant to Practice Book § 10-3 (a), “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” The defendant claims that the judgment on the first count was inappropriate in that it was awarded pursuant to statutory authority and there is no allegation of any statutory basis in the first count. Although the defendant’s claim is correct, our courts have held that the requirement that the pleader specifically identify the statute on which he relies is directory rather than mandatory. Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993); Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998); Peerless Ins. Co. v. Tucciarone, 48 Conn. App. 160, 163 n.3, 708 A.2d 611 (1998); Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 520 A.2d 1073 (1988).
“The warranty of merchantability is the broadest and most important warranty in the Uniform Commercial Code. A warranty of merchantability is implied in any sale of goods by a merchant seller; the statutory standards for merchantability include, under § 42a-2-314 (2) (c), that the goods be fit for the ordinary purposes for which such goods are used. . . . See White & Summers, Handbook of the Law under the Uniform Commercial Code, §§ 9-6, 9-7 (1972).” (Internal quotation marks omitted.) Schenck v. Pelkey, 176 Conn. 245, 253-54, 405 A.2d 665 (1978).
“The implied warranty of merchantability holds merchants liable to the extent their goods fail to conform
It is apparent from an examination of the first count of the plaintiffs complaint that she alleged a cause of action in breach of warranty. The plaintiff alleged that “[t]he Defendant warranted the motor vehicle to be in all respects in good and running condition and without any substantial mechanical defects and the Plaintiff purchased [this] motor vehicle in reliance upon said warranties.” The plaintiff also alleged that “[t]he motor vehicle was not in fact in good and running condition and was not without substantial mechanical defect . . . .” The language of the first count not only alleged that there was a breach of warranty, but it also included language that sounded in terms of merchantability under § 42a-2-314 (2) (c). Other than the inadvertence
II
The defendant’s second claim is that the court improperly decided that it breached an implied warranty of merchantability in that the vehicle became unfit for its ordinary purpose due to a latent defect that became apparent only after being driven approximately 6500 miles between July, 1994, and June, 1995. We do not agree.
In its brief, the defendant attacked the court’s memorandum of decision, stating: “In its memorandum of decision the trial court cited Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F. Sup. 548 (D. Conn. 1967), for the proposition that ‘[i]f the particular purpose for which goods are to be used coincides with their general functional use, an implied warranty of fitness for a particular purpose merges with an implied warranty of merchantability,’ [Id., 562], citing Crotty v. Shartenberg’s-New Haven, Inc., 147 Conn. 460, 464, 162 A.2d 513 (1960). Recovery may be on either theory: The particular purpose for which the goods are required, made known to the seller, may also be the general purpose for which the product was prepared and is commonly used. If so, there is an implied warranty that the goods are of merchantable quality. ‘A dealer who sells articles which ordinarily are used in only one way impliedly warrants fitness for use in that particular way. The warranty is one of merchantability.’ Id. Of significance in [Beech Aircraft Corp. v. Flexible Tubing Corp., supra, 548], however, the product in question, rubber hoses, had more than one commercial purpose. In the instant case, the subject BMW had only one purpose, its ordinary purpose—transportation of the owner. Therefore, the trial court misapplied the holding in [Beech Aircraft
The court did not apply, let alone misapply, the holding of Beech Aircraft Corp., as the defendant claims. Beech Aircraft Corp. was a complex case
The defendant is correct in stating in its brief that there are “significant factual differences” between Beech Aircraft Corp. and this case. Hence, in paraphrasing language from Beech Aircraft Corp., the court was not applying the holding of that decision, but merely was referring to Connecticut law that set out the theories of implied warranty as well as express warranty.
In making this claim, the defendant argues that the court found the same factual scenario as the court described in Chamberlain and other similar cases,
In Chamberlain, the plaintiff bought a used 1958 Chevrolet from the defendant.
The circumstances of Chamberlain are quite dissimilar from those of the present case. We agree with Chamberlain's statement, however, that “[a] used car is not a new car, and the express or implied warranties, if any, must be reflected in the newness or antiquity of the car sold.” Id., 695; see Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 353, 525 A.2d 57 (1987). In Chamberlain, the car was a seven year old Chevrolet; Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687; in this case, the vehicle was a two year old BMW. In Chamberlain, the purchase price was $325; id.; in this case, the purchase price was $24,690. Furthermore, in Chamberlain, the car was sold “as is,” with no guarantees; id; in this case, the car was not sold “as is.”
Moreover, we have not overlooked the court’s finding that the “defect would not be readily apparent as a result of the ‘safety inspection’ conducted by the defendant at the time of sale.” In Web Press Services Corp. v. New London Motors, Inc., supra, 203 Conn. 343-44, the plaintiff sought damages from the defendant automobile dealer in connection with the defendant’s sale to the pla.iut.iff of an allegedly defective used vehicle. The court interpreted Chamberlain to stand for the proposition that unless the case before the court concerns an “as is” clause in the contract, Chamberlain does not
We therefore cannot conclude that Chamberlain is squarely on point or that it involves the same factual scenario as exists in the present case. The court in the present case recognized that the facts found and the applicable law permitted the conclusion that the defendant breached the implied warranty of merchantability
The law the defendant uses to support its claim that the court improperly found a breach of the implied warranty of merchantability is not in fact applicable. The cases the defendant cites clearly are distinguishable from the present case. The defendant, therefore, has not shown that the court’s fact-finding was clearly erroneous or that its legal conclusions were improper.
Ill
The defendant’s next claim is that the court improperly awarded only nominal damages after it found that the defendant was entitled to an offset for the plaintiffs use of the vehicle, but determined that calculating the amount of the offset was too speculative. We do not agree.
“The policy of the law is always to prevent unnecessary litigation, and where . . . entire justice can be done to both of the parties before the court, by the ascertainment and set-off
Neville and Listorti had considerable experience in the matter of leasing motor vehicles. Both were confronted with the task of calculating a monetary value for the plaintiffs monthly use in 1994 and 1995 of a 1992 vehicle.
Credibility of expert testimony is for the trier of fact, and such testimony cannot be based on conjecture or surmise. See Connecticut Bank & Trust Co. v. Incendy,
After listening to the experts, the court, in commenting on the difficulty of placing a correct monetary value on the vehicle’s use under these circumstances, stated that the comparisons by the experts were based on “a different type of agreement [than what the plaintiff actually entered into], that is, a lease agreement as contrasted to the retail sale and purchase [agreement actually entered into] by the plaintiff . . . .” The court stated that it was difficult for the experts to calculate, in 1998, figures for a period of 1994 and 1995 on a vehicle that was built in 1992.
IV
The defendant’s final claim is that the court improperly awarded the plaintiff, as a return of her down payment, an amount greater than what she had paid. We agree with the defendant.
The defendant argues that in its posttrial motion for reargument and reconsideration, it noted that the court had determined that the defendant was to refund the plaintiffs down payment. In that regard, the defendant points out that the court awarded $4690.94, but argues that the plaintiffs evidence, exhibits A
In its memorandum of decision, the court found that the plaintiff should be awarded $4690.94 to account for the down payment she had made. While it is true, as the plaintiff argues, that exhibit A sets out the down payment as $4690.94, the defendant argues that this figure is incorrect and that the actual down payment was $2980.94. The defendant points to two other exhibits, exhibit B and exhibit nine. The latter is the defen
Exhibit B also sets out the dollar amounts involved in arriving at the $21,710 figure. In section four, part B, of exhibit B, titled “Down Payment,” there is typed the figure 2980.94, which is repeated on the line titled “Total Down Payment.” In yet another box on exhibit B titled “Total Sale Price,” $2980.94 appears as the down payment. Furthermore, when $2980.94 is added to the amount financed, $21,710, the total is $24,690.94, which is the total cash price of the vehicle.
On exhibit A, the “Total Cash Price Delivered” is set out as $24,690.94, and the “Unpaid Balance of Cash Price” is set out as $20,000. Thus, on exhibit A, the retail installment contact signed by the plaintiff and the defendant, the figure $4690.94 appears. That figure appears once again on exhibit A on no special designated line and in no box, but on the face of the exhibit as “COD Amt $4,390.94.” On exhibit B, the figure $2980.94 appears three times. As far as the down payment is concerned, the only evidence before us on this matter, in addition to what we previously have set out, is a check from the plaintiffs credit union, dated July 16, 1994, to the defendant in the amount of $2250, plus the $300 referred to in exhibit A.
We do believe that it is fair to consider exhibits A and B together because the two are legally related, with the former being the transfer of the property and the latter being in the nature, metaphorically speaking, of
In proceeding as we do, we are not retrying any facts. We are determining whether the challenged facts were appropriately determined. We may modify the amount of damages where it exceeds the amount proven. See Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 (1961). We can do so especially where it can be done without interfering with settled principles of law, and the record contains sufficient data to accomplish that task. See 5 C.J.S. 404-405, Appeal and Error § 906 (1993).
We observe that on exhibit A, the “Total Cash Price Delivered” on the vehicle was $24,690.94 and on exhibit B in the box labeled “Amount Financed” is $21,710. The difference between those figures is $2980.94. This figure, we determine, is the proper amount that should have been awarded to the plaintiff as a refund of the down payment. The court was, therefore, clearly erroneous when it determined that the amount of her down payment award should have been $4690.94. When calculating damages in a breach of contract case, the plaintiff is entitled to receive that amount of compensation that would leave her as well off as she would have been had the breach of contract not taken place. See Foley v. Huntington, 42 Conn. App. 712, 722, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Awarding her $2980.94 for her down payment will do that on this branch of her claim.
The judgment is reversed only as to the calculation of the amount of the down payment due the plaintiff and the case is remanded with direction to reduce the refund of the down payment to $2980.94; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
The first count of the complaint alleged that the vehicle was not in good and running condition in that it had substantial mechanical defects. The second count alleged that the defendant breached the parties’ sales agreement by representing that the vehicle had not previously been in an automobile accident when it had been in such an accident. The third count alleged a violation of General Statutes § 42-225 by virtue of false, misleading or deceptive statements about the history and condition of the vehicle. The fourth count alleged that the plaintiff relied to her detriment on the representations of the defendant. The fifth count alleged that the defendant fraudulently induced the plaintiff to purchase the vehicle. The sixth count alleged unfair or deceptive acts or practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
The defendant seemed to suggest at oral argument, but not in its brief, that the plaintiff in her complaint had not included a proper prayer for relief. We disagree. “In an ordinary civil case, the general rule is that a prayer for relief must articulate with specificity the form of relief sought.” Stern v. Medical Examining Board, 208 Conn. 492, 501, 545 A.2d 1080 (1988), and
The court dismissed the remaining counts of the complaint, finding that the plaintiff had failed to meet her burden of proof as to the second, third, fifth and sixth counts, and that she had failed to state a cause of action in the fourth count..
The court broke down its judgment for damages as follows: (1) down payment at the time of purchase, $4690.94; (2) eleven monthly payments at $538.70 per month for a total of $5925.70; (3) the cost of two new tires, as estimated by the defendant’s witness, $240; and (4) an inspection by a tire dealer costing $26.50 for total damages of $10,883.14, less an offset for the plaintiffs use of the vehicle.
General Statutes § 42a-2-314 provides: “(1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if 1he seller is a merchant with respect, to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
“(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.
"(3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade.”
The inspection report, by County Line BMW of Watertown stated in part: “[The vehicle has] been in a severe rear collision. Right rear drive axle, complete control arm have been replaced. Rear differential support frame is twisted on right side and should have been replaced. Right rear frame rail is dented. Rear bumper does not line up. . . . Three tires in fair shape, but right rear is bald. Because of bent differential support on right rear, the tire is scuffing the rubber off and will continue even if tire is replaced.”
The insurer of the vehicle at that time obtained a repair estimate in the range of $8000. The vehicle then was repaired. The owner at that time transferred the vehicle’s title to Stamford European Motors, Inc., which, in turn, transferred the title to Chip’s Auto Sales, Inc., which then transferred the title to the defendant on or about April 6, 1994.
Sometime around July, 1995, the plaintiff mailed a complaint to the department of motor vehicles but obtained no satisfaction.
The court’s memorandum of decision references General Statutes § 42a-2-315 (3) (b), but because there is no subsection (3) (b) in that statute, it is reasonable for us to assume that the court intended to cite § 42a-2-316 (3) (lb).
The court scheduled a hearing for September 29,1998, to admit evidence as to the monetary value of the offset.
The first count of the complaint alleged:
“1. At all times hereinafter mentioned, the Defendant, MAURO MOTORS, INC., is a valid Connecticut corporation with its principal place of business located at 1635 Dixwell Avenue, in the Town of Hamden, County of New Haven and State of Connecticut, and is engaged in the business of, inter alia, the sale of new and used motor vehicles, and also being duly licensed by the State of Connecticut, Department of Motor Vehicles, Dealers and Repairers Division.
“2. On or about July 13,1994, the Plaintiff, ELIZABETH CRISCUOLO, and the Defendant, entered into a written Retail Purchase Order for Motor Vehicle, whereby the Plaintiff agreed to buy, and the Defendant agreed to sell, a used 1992 BMW 318; C motor vehicle, for the price of Twenty-Three Thousand Dollars ($23,000.00).
“3. The Defendant warranted the motor vehicle to be in all respects in good and running condition and without any substantial mechanical defects, and the Plaintiff purchased said motor vehicle in reliance upon said warranties.
“4. The motor vehicle was not in fact in good and running condition and was not without substantial mechanical defect in that the frame of said motor vehicle is bent and twisted, the right rear frame rail is dented, the rear bumper does not line up, the paint work and body work is substandard, and the tires are rubbing against the vehicle.
“5. By reason of said defects, the Plaintiff has been damaged in that said motor vehicle is inoperable and will require a large sum of money for its repair and during the period of time it will take to repair, the Plaintiff will lose its use and enjoyment.”
There is no question in this case that the defendant was a merchant seller and that the vehicle was sold as being fit for the ordinary purposes for which such goods are used. See General Statutes § 42a-2-314 (2) (c).
The transcript of the entire trial is not in the record before us.
The defendant claims that the plaintiff cannot recover for breach of warranty on the basis of Sampiere v. Zaretsky, 26 Conn. App. 490, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). We do not agree. Sampiere presents a scenario much different from the one in this case. In Sampiere, a medical malpractice case, the plaintiff failed to allege in her complaint that she would be forced, as a result of the claimed malpractice, to incur future medical expenses. Id., 492. The trial court, however, instructed the jury that it could award such expenses. Id. On appeal, this court reversed the judgment for the plaintiff on the basis of that improper instruction and stated that the allegations in her complaint “explicitly limited her right of recovery to those expenses incurred prior to the trial.” Id., 496. We also stated that “[e]ven a broad reading of the complaint did not give the defendant notice of the additional issue.” Id.
In the present case, the plaintiffs allegations did not explicitly limit her right to recover under the theory of implied warranty of merchantability. Furthermore, if we read the complaint broadly, it would, without question, be said to have given the defendant notice of the specific claim. Sampiere is thus clearly distinguishable.
“We may examine the trial court’s memorandum of decision to understand better the basis of its decision and to determine the reasoning used by it in reaching its conclusion.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984). “[W]e must read the language of [the] trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 13 Conn. App. 651, 658, 538 A.2d 1082 (1988), rev’d on other grounds, 210 Conn. 170, 553 A.2d 612 (1989). It is the duty of the trial judge to set forth the basis of his or her decision. Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981).
Beech Aircraft Corp. v. Flexible Tubing Corp., supra, 270 F. Sup. 548, was complex factually and legally. The decision included forty-four headnotes. Although both Connecticut and Colorado law were involved, it was agreed that the pertinent statutory warranty provisions were the same.
The holding of Beech Aircraft Corp., for the salce of brevity without the loss of substance, fairly appears in the syllabus of the case, which states: “Suit for breach of warranty, wherein plaintiff sought recission of sale of specialized hoses on ground of seller’s breach and defendant counterclaimed. The [United States District Court for the District of Connecticut], Blumenfeld, J., held that where attached to quotations submitted by seller’s agent was a drawing showing use of hoses to transport corrosive fuel and oxidizer, note on drawing stated that rubber compound and teflon used wouldbe compatible, and seller’s sales order acknowledgement, constituting a counteroffer to sell hoses, contained no representations but stated that seller guaranteed its merchandise to be substantially as represented, seller expressly warranted that hoses would be reasonably fit for use with corrosive substances referred to in drawing and buyer was not liable for purchase price when hoses failed to fulfill warranty, but that where buyer could have procured substitute hoses within a matter of hours or at most a few weeks when it appeared that hoses supplied by seller were not suitable for buyer’s
In this case, the language in the memorandum of decision regarding implied warranties paraphrases that in Crotty v. Shartenberg’s-New Haven, Inc., supra, 147 Conn. 464.
The defendant suggests that the court improperly relied on Beech Aircraft Corp. Simply put, had Crotty v. Shartenberg’s-New Haven, Inc., supra, 147 Conn. 460, itself been cited instead of Beech Aircraft Corp., there well could have been no comment by the defendant. Assuming arguendo that the court did improperly rely on Beech Aircraft Corp., the facts could not establish that the court improperly found for the plaintiff on the first count of her complaint because even where a court “does not state a proper basis for its results, its judgment may be sustained if there are proper grounds to support it.” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 529, 546 A.2d 216 (1988).
Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. Ct. 685, 239 A.2d 42 (1967), was decided by the Appellate Division of the Circuit Court, not by our Supreme Court.
No “other similar cases” are cited by the defendant in its brief.
The purchaser of this car bought it from the defendant for her son who was a student at a college in Schenectady, New York. Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687. She purchased the car in 1965. Id. Her son picked up the car from the defendant late in August, 1965, and soon thereafter drove to Schenectady, where the vehicle was kept until it was sold one year later. Id., 688.
The Chamberlain court also stated that the defendant’s salesman had explained to the plaintiff and her son that “no guarantee meant that once they drove the vehicle out of the lot, it became their responsibility.” (Internal quotation marks omitted.) Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687.
Because Web Press Services Corp. is a Supreme Court case and Chamberlain is a Circuit Court case, Web Press Services Corp. is more authorita.tive support.
The Chamberlain “court stressed [that] there was no evidence that the dealer had any knowledge of the alleged defect prior to the sale, or that the defect was ascertainable by inspection.” Annot., Liability on Implied Warranties in Sale of Used Motor Vehicle, 47 A.L.R.5th 677, 713 § 4[b] (1997).
It was appropriate for the court to conclude that what the defendant characterizes in its brief as a “latent defect,” which the defendant was responsible for under its warranty, was not discovered by the plaintiff apparently until after the vehicle had been driven about 6500 miles between July, 1994, when it was purchased, and June, 1995. This case has some similarity to McCormack v. Lynn Imports, Inc., 114 Misc. 2d 905, 452 N.Y.S.2d 821 (1982). In McCormack, the plaintiff was involved in a minor collision eight months after she bought a used car from the defendant. Id., 907-908. The plaintiffs expert testified that he found that the car had a bent frame from an earlier accident and that there was evidence of weld marks. Id., 908. The small claims court found a breach of the implied warranty of merchantability under the Uniform Commercial Code. Id., 910-12.
The right of setoff also is called offset. Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 18, 116 S. Ct. 286, 133 L. Ed. 2d 258 (1995).
The court scheduled the hearing because it concluded that the record was insufficient to enable it to determine the dollar amount to which the defendant was entitled.
Each expert was hindered because neither had any lease figures from 1992 to work from.
The court noted the many differences one must consider when making 1998 calculations for a period of 1994 and 1995. Some of the differences the court addressed were different manufacturer suggested retail prices, different total sales prices and different start payments. The court noted the fact that the vehicle in this case (1) was used, not new, and (2) was found to have been defective at the time of the sale and during its use by the plaintiff.
Exhibit A was the retail installment contract, dated July 13, 1994, between the defendant as the seller and the plaintiff as the buyer.
Exhibit B is the BMW Financial Services, Retail Installment Contract and Security Agreement, dated July 15, 1994, between the defendant as the seller and the plaintiff as the buyer. The plaintiff financed the balance by the agreement in exhibit B after being credited for the cash she put down.
At the time of the hearing regarding the offset on September 29, 1998, the defendant drew the court’s attention to the claimed discrepancy in the amount of the down payment. At that time, the court stated: “I understand. I propose to take no action, but it’s on the record, your position on this matter. ”
Exhibit nine contains handwriting that reads, “COD amount paid-in-full-7-15-95 T.D.” There are no handwritten signatures on it.
Exhibit B also includes a specific dollar amount for such items as the monthly payments, the terms of the payments, the total of the payments, the annual percentage rate, the cash sale price and the sales tax.
If there is any other evidence of the down payment, it is not before us.
