Testo v. Russ Dunmire Oldsmobile - 16 Wash. App. 39, 554 P.2d 349 (1976)

Rule:

Printed disclaimers of warranties in form contracts are not favored by the courts and should be strictly construed against the seller. Although a general disclaimer clause may negate implied warranties if there is a negotiated contract between a commercial seller and a commercial buyer, it is not appropriate to a consumer sale. This is so unless it is shown that the so-called disclaimer is explicitly negotiated between buyer and seller and set forth with particularity showing the particular qualities and characteristics of fitness which are being waived.

Facts:

Plaintiff, Marlin E. Testo, purchased a used automobile from defendant, Russ Dunmire Oldsmobile, Inc. Barely three hours after plaintiff's purchase of the automobile, the defects of the automobile, which included overheating and quitting, began to manifest and plaintiff was unable to rectify them. Consequently, plaintiff filed a complaint for rescission seeking, not only return of the purchase price, but also reasonable attorney's fees on the theory that defendant had engaged in an unfair or deceptive act in the conduct of trade in violation of the Washington Consumer Protection Act, RCW 19.86. The Superior Court for Pierce ruled in favor of the plaintiff. On appeal, the defendant denied liability, contending that there was absence of express or implied warranties and that plaintiff waived all implied warranties by signing its standard form.

Issue:

Under the circumstances, was plaintiff entitled to rescind the contract to purchase defendant’s automobile?

Answer:

Yes.

Conclusion:

The court determined that defendant, who was unquestionably a merchant, did not disclose that the automobile was used for racing. It asserted that a warranty that the automobile would be operable was implied even if it was a used one and that the automobile did not meet the description of a used car. The court also asserted that there was no evidence that the parties discussed or agreed on the issue of disclaimers or exclusions. The court held that the attempted disclaimers were insufficient to relieve defendant from liability from a deceptive act. Accordingly, the order in favor of plaintiff was affirmed because plaintiff did not waive implied warranties and was entitled to rescind the contract.