Billings Yamaha v. Rick Warner Ford, Inc.

OAKS, Justice:

This is an action by the purchaser of an automobile against the dealer for rescission and damages because the car failed to perform as warranted. After a bench trial, the court found that defendant had breached its written warranty and gave the plaintiff judgment for $2,836 damages. Since we are unable to find any evidence in the record on the terms of the warranty, we reverse.

Plaintiff, a partnership, purchased a new 1976 Thunderbird from defendant in July of 1976 for approximately $11,500. According to the testimony of Delyle Billings, one of plaintiff’s principals, the car developed problems with the carburetor, which resulted in stalling. This stalling would cause the power brakes and power steering to fail, making it very difficult to steer the car or to bring it to a halt. On several occasions, this resulted in what Billings considered life-threatening situations for himself and his wife.

Billings brought the problem to the attention of defendant’s service department. He testified that he left the car with the dealer a total of nine times during the sixteen months he had the car. The last time was in November of 1977, when the ear had been driven over 16,000 miles. When he and Mrs. Billings retrieved the car, the stalling recurred within a few blocks of the dealership. They immediately returned to defendant’s service department, where Billings informed defendant’s service manager that the problem seemed unsolvable and that he no longer desired to keep the car. Billings never again contacted defendant about the car. Instead, he instigated this action.

At the trial, Billings testified that he had received a 12,000-mile/one-year warranty with the car. Billings also testified that he purchased an extended five-year/50,000mile warranty on the drive train and engine. (The findings of the trial court do not indicate whether defendant breached the original warranty or the extended warranty.) Defendant does not dispute the fact that warranties were made to the plaintiff. However, no copy of either warranty was introduced in evidence at trial, and none of the witnesses testified about the contents of the warranties. Defendant moved for dismissal at the close of plaintiffs case. The motion was denied.

In the posture of this case, we must reverse. The finding of breach of warranty is not supported by substantial evidence in the record. There is no evidence to show that the defect complained of was covered by either warranty or that the remedy granted by the trial court was appropriate to the terms of the warranty.

We cannot sustain a finding of breach of a written warranty where there is no written copy of the warranty in the record on appeal and where there was no oral testimony covering its terms.¹ Rocky Mountain Fire and Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 294, 640 P.2d 851, 856 (1982). See generally Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382 (1962) (action for breach of title insurance provisions properly dismissed where neither the provisions nor a copy of the policy was in the record); Miller v. Andy Burger Motors, Inc., Mo.App., 370 S.W.2d 654, 659 (1963) (failure of proof as to limitation of warranties).

In addition, we know from the record that the defendant dealer conspicuously and expressly excluded warranties of fitness and merchantability. The Installment Sale and Security Agreement contains a disclaimer in bold print just above the signatures of Billings and his wife. In addition, Mrs. Billings signed the purchase order, which contains two paragraphs of disclaimer, also in bold print (though on the reverse side). This is not a case where the seller hid its disclaimer in fine print, such as in Christopher v. Larson Ford Sales, Inc., Utah, 557 P.2d 1009 (1976), relied upon by the dissent. Here, the disclaimer was in bold print on two different sales documents, one of which contained the limitation directly above the buyers’ signatures. Nor is this a case where the buyer was inexperienced or unfamiliar with commercial practices. This buyer was a dealer in motor vehicles (motorcycles).

As a matter of law, these disclaimers effectively limited plaintiffs remedy to the manufacturer’s express' warranties, discussed above. U.C.A., 1953, § 70A-2-316. See Fry v. Duce Sporting Goods, Inc., Utah, 547 P.2d 1338 (1976). The dissent’s suggestion that we remand for findings on implied warranty is therefore inappropriate.

The judgment for plaintiff is reversed, and the case is remanded with directions to enter judgment for defendant. Costs to appellant.

HALL, C.J., and DAVID SAM, District Judge, concur. STEWART, J., does not participate herein. SAM, District Judge, sat.

1 . This is not a case of an oral warranty whose contents were proven at trial. Compare Groen v. Tri-O-Inc., Utah, 667 P.2d 598 (1983).