{
  "id": 3114309,
  "name": "MICHAEL D. BLANKENSHIP et al., Plaintiffs-Appellees, v. NORTHTOWN FORD, INC., et al., Defendants-Appellants",
  "name_abbreviation": "Blankenship v. Northtown Ford, Inc.",
  "decision_date": "1981-04-16",
  "docket_number": "No. 16465",
  "first_page": "303",
  "last_page": "308",
  "citations": [
    {
      "type": "official",
      "cite": "95 Ill. App. 3d 303"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T16:14:33.414377+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "MICHAEL D. BLANKENSHIP et al., Plaintiffs-Appellees, v. NORTHTOWN FORD, INC., et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE CRAVEN\ndelivered the opinion of the court:\nPlaintiffs, Michael Blankenship and Karen Blankenship, purchased a new 1979 Ford Bronco in September 1978, from defendant, Northtown - Ford, Inc. (dealer), for a purchase price of $10,217. The car was manufactured by defendant, Ford Motor Company (manufacturer). The manufacturer provided plaintiffs with a 12-month/12,000 mile warranty on the vehicle by which the manufacturer warranted that it would \u201crepair or adjust any parts 060 found to be defective in factory materials or workmanship.\u201d From September 17,1978, when plaintiffs took possession of the automobile, until the latter part of January 1979, the plaintiffs brought the automobile to the dealer on 11 separate occasions for repairs. Plaintiff Michael Blankenship testified at trial to the history of problems the plaintiffs experienced with the vehicle. He had experience and an educational background in automobile repair and testified based upon his expertise. His testimony as to the repairs performed was fully corroborated by the work orders enumerating the work to be performed on the vehicle which the dealer drafted for its repair shop.\nAt the time plaintiffs took possession of the automobile, Michael Blankenship road-tested the vehicle and noticed a \u201cclunking noise\u201d in the drive train which the salesman at the dealership said he would check. Thereafter the vehicle was first returned to the dealer on September 28, 1978, when the car had 740 miles on its odometer because a front shock absorber had come loose, the car was leaking oil, and when in motion there was a clunking noise in the drive train (the same noise plaintiff had previously told the dealer\u2019s salesman about), and there was a jerking feeling in the steering as one drove the car.\nOn October 3,1978, Michael brought the car to the dealer to replace the alternator belt. At that time the drive train noise had resumed and a clutch adjustment was needed. When plaintiffs returned to the dealer to get the car after the repairs had been performed, the clutch was so maladjusted that Michael could not drive the car, and the shop foreman then adjusted the clutch for him.\nOn October 16,1978, Michael returned to the dealer\u2019s repair facilities because the drive shaft of the vehicle had broken, making it inoperable. The work order stated that a \u201cclunking noise\u201d had again been reported. On October 25, 1978, plaintiffs once again returned the vehicle to the dealer to repair the drive shaft which had fallen out of the car. On October 31,1978, Michael took the vehicle into the dealer to repair an oil leak. On November 1,1978, he returned the vehicle to the dealer again for repair of the drive shaft which again had broken. On November 7, 1978, he again returned the car to the dealer; the drive shaft had broken once again and the automobile had a bad oil leak. On November 15, 1978, Michael again brought the vehicle to the repair shop. He stated that there had been a vibration in the car after its prior repair and the vibration got very bad and finally the U-joint broke and the car was inoperable. Michael took the car to the dealer again on November 29,1978, for repair of the drive shaft which had again fallen out. He stated that at that time the dealer put in new U-joints, changed both rear springs, and changed the horn of the vehicle. On December 18, 1978, Michael returned the vehicle to the dealer for the installation of a rear drive shaft which again was out. On January 11, 1979, he took the vehicle back to the dealer because the drive shaft was again out and there were also problems with the differential and the radio. On January 25,1979, Michael again brought the car in for repairs. The drive shaft was out again and the dealer repaired the radio at that time, in addition to which there was a problem with one brakeline which had bent when the drive shaft fell out.\nMichael testified that during the time he possessed the car he was not able to use if for the normal use for which it was purchased because the possibility of the U-joints breaking made the car dangerous to drive at even normal city driving speeds. At highway speeds, if the U-joints were to break, Michael stated that that could cause the car to overturn.\nPlaintiffs finally (apparently) returned the automobile to the dealer, after which, in April 1979, they filed suit against both the dealer and the manufacturer, seeking rescission of the sales contract based upon section 2 \u2014 314(2) (c) of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 314(2)(c)). Plaintiffs alleged the defendants breached the implied warranty of merchantability by selling plaintiffs a vehicle which was not fit for the ordinary purposes for which such goods are used. Plaintiffs sought, as damages, the recovery of the purchase price plus interest paid and consequential damages. At the bench trial which followed, plaintiff Michael Blankenship was the only witness, and he testified from his expertise as to the various problems with the vehicle previously enumerated. He also testified that no one except the dealer ever repaired or attempted to repair the vehicle. Neither defendant cross-examined Michael nor presented any evidence on their own behalf. The trial court entered judgment in favor of the manufacturer and returned a judgment in favor of the plaintiffs and against the dealer, Northtown Ford, Inc., for $11,024.94, from which judgment the dealer appeals.\nThe sole issue on appeal is whether defendant-dealer\u2019s contractual disclaimer of implied warranties bars plaintiffs from rescinding the sale based upon the delivery of a defective automobile. We affirm.\nPlaintiff\u2019s rescission action is grounded in section 2 \u2014 608 of the UCC which provides:\n\u201c(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it\n(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or\n(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller\u2019s assurances.\n(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.\n(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.\u201d Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 608.\nPlaintiffs base their right to rescind on the nonmerchantability of the vehicle. They claim that the goods, the vehicle, was not fit for ordinary purposes and that therefore the dealer breached the implied warranty of merchantability under section 2 \u2014 314 of the UCC. Section 2 \u2014 314 states in part:\n(1) Unless excluded or modified (Section 2 \u2014 316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.\u201d (Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 314(1).)\nThe factual question of whether this vehicle was fit for ordinary purposes, based on the evidence presented at trial, is uncontroverted; this vehicle was not merchantable but was, rather, clearly and substantially defective.\nThe dealer asserts that it disclaimed all implied warranties in its sales contract, and therefore plaintiffs cannot rescind based upon any implied warranty. Initially, we note that revocation of acceptance under section 2 \u2014 608 of the UCC is not limited to goods which are not merchantable but rather contains a more subjective standard: rescission may be sought if the nonconformity of the goods substantially impairs their value to the buyer. In this case, the evidence unequivocally demonstrated that the substantially defective nature of the vehicle clearly impaired its value to the plaintiffs and thus revocation of acceptance is appropriate even if the dealer has properly disclaimed all implied warranties. We so hold.\nThe two disclaimer of warranty provisions relied upon by the dealer are contained in the sales contract executed by the parties which the plaintiffs signed. The first attempted disclaimer of warranties appeared on the front side of the contract, printed in the smallest typeset used in the contract, and reads: \u201cThe seller, North Town Ford, hereby expressly disclaims all warranties either express or implied, including any implied warranty of merchantability or fitness for a particular purpose, and neither assumes nor authorizes any other person to assume for it liability in connection with the sale of the vehicle.\u201d\nOn the reverse side of the contract, a second attempted disclaimer reads:\u201c9. Factory Warranty: Any warranty on any new vehicle or used vehicle still subject to a manufacturer\u2019s warranty is that made by the manufacturer only. The seller hereby disclaims all warranties, either express or implied, including any implied warranty of merchantability or fitness for a particular purpose.\u201d\nThe dealer asserts that its two disclaimers, either individually or taken together, comply with the requirements of section 2 \u2014 316 of the UCC which establishes guidelines for warranty disclaimers. Therefore, the dealer concludes that it sold the car to plaintiffs without any implied warranties and that it was essentially an \u201cas-is\u201d sale. Section 2 \u2014 316 provides in part:\n\u201c(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous * \u00b0 Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 316(2).\nRasing their argument on appeal on an alternative ground, plaintiffs\u2019 counsel has conceded the compliance of those disclaimers with section 2 \u2014 316 of the UCC. The disclaimer on the front of the contract is in tiny print and clearly insufficient to satisfy any interpretation of the conspicuousness requirement for disclaimers under section 2 \u2014 316. The second disclaimer, containing the heading \u201cFactory Warranty,\u201d is misleading, and a disclaimer which follows a misleading heading cannot be deemed to comply with section 2 \u2014 316. (See White & Summers, Uniform Commercial Code, ch. 12, \u00a75, at 443 (2d ed. 1980).) Even if these disclaimers were in technical compliance with section 2 \u2014 316, as plaintiffs attempted to concede, the surrounding circumstances of this transaction would prohibit the dealer from being allowed to avoid rescission based upon their technical compliance with section 2 \u2014 316. Defendants were purportedly selling plaintiffs a \u201cnew car.\u201d The logical extension of the dealer\u2019s argument in this case is that delivery by the dealer of anything which it referred to as a \u201cnew car,\u201d even an automobile without an engine, would bar plaintiffs\u2019 action for rescission based upon an implied warranty of merchantability. We agree with the comment to the UCC which specifically rejects this interpretation of the disclaimer provision and which states:\n\u201c4. In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller\u2019s obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming \u2018all warranties, express or implied\u2019 cannot reduce the seller\u2019s obligation with respect to such description and therefore cannot be given literal effect under Section 2 \u2014 316.\nThis is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish. But in determining what they have agreed upon good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation.\u201d Ill. Ann. Stat., ch. 26, par. 2 \u2014 313, Uniform Commercial Code Comment (4), at 219-20 (Smith-Hurd 1963).\nThe dealer in this case sold plaintiffs an automobile which was unfit for the ordinary purposes for which such vehicles are used, thereby breaching the implied warranty of merchantability. The dealer did not properly disclaim the warranty, and could not disclaim its obligation to deliver the product which formed the basis of the parties\u2019 bargain. Thus the trial court correctly held revocation of acceptance to be a proper remedy.\nAffirmed.\nMILLS, J., concurs.",
        "type": "majority",
        "author": "Mr. JUSTICE CRAVEN"
      },
      {
        "text": "Mr. JUSTICE GREEN,\nspecially concurring:\nI concur in the decision of the majority to affirm. I agree that the attempted disclaimers of the implied warranty of merchantability by defendant Northtown Ford were ineffective. As stated by the majority, the attempted waiver on the front page was not sufficiently conspicuous and that on the back page followed a misleading heading which indicated that the provisions following it all concerned warranties of the manufacturer and not the seller. No other explanation for affirmance is necessary, and I deem it unwise and am unwilling to attempt to do so.\nThe remedies of rejection and revocation of acceptance are provided for in sections 2 \u2014 601 and 2 \u2014 608 of the Uniform Commercial Code. (Ill. Rev. Stat. 1979, ch. 26, pars. 2 \u2014 601, 2 \u2014 608.) It has been said that with these provisions the drafters of the Code \u201cattempted to bring some order out of the chaotic body of law which had previously passed under the title \u2018recission\u2019. \u201d (J. White & R. Summers, Uniform Commercial Code, ch. 8, \u00a78 \u2014 1, at 246 (1972).) To come under the purview of either section, goods sold must be of such quality as to fail to conform to the contract of sale. The majority states that even if the warranty of merchantability had been waived here, section 2 \u2014 608 would permit the plaintiff to rescind. Reaching that conclusion requires a determination that the defects here caused the vehicle to fail to conform to a contract which permitted the motor vehicle to be merchantable. The instant automobile was unfit for ordinary use as an automobile, but that deficiency is precisely the type of deficiency which makes goods unmerchantable. Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 314(2)(c).\nAs we have done here, I would hold the seller strictly to the requirements for disclaimer of implied warranties, but had the disclaimer been properly effectuated, I would deem it to be a close question as to whether the disclaimer should be given the narrow application proposed by the majority.",
        "type": "concurrence",
        "author": "Mr. JUSTICE GREEN,"
      }
    ],
    "attorneys": [
      "Thomas W. Gendry and Michael I. Campbell, both of Hull, Campbell, Robinson & Gibson, of Decatur, for appellants.",
      "Allison & Gollings, of Decatur (James R. Gollings, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "MICHAEL D. BLANKENSHIP et al., Plaintiffs-Appellees, v. NORTHTOWN FORD, INC., et al., Defendants-Appellants.\nFourth District\nNo. 16465\nOpinion filed April 16, 1981.\nGREEN, J., specially concurring.\nThomas W. Gendry and Michael I. Campbell, both of Hull, Campbell, Robinson & Gibson, of Decatur, for appellants.\nAllison & Gollings, of Decatur (James R. Gollings, of counsel), for appellees."
  },
  "file_name": "0303-01",
  "first_page_order": 325,
  "last_page_order": 330
}