Colonial Dodge, Inc v. Miller

Cynar, P.J.

(dissenting). Defendant Miller entered into a special purchase order with plaintiff for the purchase of a station wagon specified as a "Heavy Duty Trailer Package” which included "heavy duty oversized tires”. The specially ordered station wagon was delivered to plaintiff and Miller picked up the vehicle after Miller executed an application for Michigan title and made payment for the vehicle with checks. The invoice indicated that the spare tire was not included in the deliv*88ery and would be shipped later, the delay being attributed to a nationwide tire strike. The following day Miller called plaintiff and complained about the missing tire', stopped payment on the checks, and advised plaintiff to pick up the station wagon, which was parked in front of his home. Plaintiff advised Miller when the replacement tire became available.

In Zabriske Chevrolet, Inc v Smith, 99 NJ Super 441; 240 A2d 195 (1968), an automobile became inoperable 7/10 of a mile and minutes after leaving the dealer’s showroom. The court decided that the buyer had a right to assume that his new car, with the exception of very minor adjustments, would be mechanically new, factory-furnished, operate perfectly, and be free of substantial defects. While I am in total agreement with the Zabriske decision, it must be pointed out that the facts in the matter submitted for our decision are not similar.

A buyer may properly revoke acceptance where the nonconformity substantially impairs its value. The existence of such nonconformity depends on the facts and circumstances of each case. Jorgensen v Pressnall, 274 Or 285; 545 P2d 1382 (1976). The determination of substantial impairment has been made from the buyer’s subjective view, considering particular needs and circumstances. See Summers & White, Handbook of the Law Under the Uniform Commercial Code (2d ed), § 8-3, p 308; Committee Comment 2 to MCL 440.2608; MSA 19.2608. An objective approach was utilized in Fargo Machine & Tool Co v Keaney & Trecker Corp, 428 F Supp 364 (ED Mich, 1977), and an objective and subjective test was employed in Jorgensen, supra.

The purpose of the requirement of substantial *89impairment of value is to preclude revocation for trivial defects or defects which may be easily corrected. Rozmus v Thompson’s Lincoln-Mercury Co, 209 Pa Super 120; 224 A2d 782 (1966).

The trial judge’s determination that the temporarily missing spare tire did not constitute a substantial impairment in value under either the subjective or objective test was not clearly erroneous. I therefore disagree with the majority finding that defendant Miller properly rejected the vehicle, and I would affirm the trial court’s finding in that regard.

Having determined that defendant Miller wrongfully revoked acceptance in this case, the trial court found that the vehicle would have been resold for $1,000 less, on or about September 1, 1976, than the sales price to defendant Miller and therefore this was the amount of damages the plaintiff was entitled to recover. With this determination, I must disagree. Based on Allen v Michigan Bell Telephone Co, 61 Mich App 62, 68; 232 NW2d 302 (1975), the trial court should have awarded the full contract price to plaintiff.