{
  "id": 2823915,
  "name": "Mia GAWLICK, Plaintiff-Appellee, v. AMERICAN BUILDERS SUPPLY, INC., Defendant-Appellant",
  "name_abbreviation": "Gawlick v. American Builders Supply, Inc.",
  "decision_date": "1974-01-23",
  "docket_number": "No. 1329",
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    {
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  "last_updated": "2023-07-14T22:44:27.328252+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "Mia GAWLICK, Plaintiff-Appellee, v. AMERICAN BUILDERS SUPPLY, INC., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nThe two issues concern damages. They are: (1) the proper measure of damages recoverable under New Mexico\u2019s \u201cUniform Commercial Code\u201d [\u00a7 50A \u2014 1-101 et seq., N.M.S.A.1953 (Repl.Vol. 8, pt. 1)] when there has been a revocation of acceptance and (2) whether there may be an offset to such damages.\nUnchallenged findings of the small claims court follow. Plaintiff purchased an automobile from defendant for $600.00. Defendant warranted the title to the vehicle was clear and promised to deliver a clear title certificate \u201cin a week.\u201d Plaintiff made several demands for the title; defendant was unable to furnish it. \u201cIf plaintiff accepted the vehicle, she revoked her acceptance.\u201d The fair market value of the vehicle \u201cif it had clear title was $1,360.00.\u201d\nThe small claims court concluded that plaintiff was entitled to judgment for the value the vehicle would have had with clear title, and entered judgment accordingly. The judgment was affirmed by the district court. See \u00a7 16-5-12, N.M.S.A.1953 (Repl.Vol. 4). Defendant appeals the judgment of the district court.\nDamages recoverable upon revocation of acceptance.\nSection 50A-2-608, supra, provides for a revocation of acceptance. The unattacked finding is that a revocation of acceptance occurred in this case.\nPlaintiff relies on \u00a7 50A-2-714, supra, in support of the award of damages based on market value of the vehicle with a clear title. She does so on the basis that damages were awarded for breach of warranty and, therefore, the measure of damages is that stated in \u00a7 50A-2-714(2), supra. The argument is fallacious. Section 50A-2-714(2), supra, sets forth a measure of damages for breach of warranty based on an acceptance. Here, the unchallenged finding is that the acceptance had been revoked. The comment to 1 ULA, Uniform Commercial Code, \u00a7 2-714 (1968) states:\n\u201c1. This section deals with the remedies available to the buyer after the goods have been accepted and the time for revocation of acceptance has gone by. . . . \u201d\nSection 50A-2-714, supra, is not applicable.\nDefendant contends the applicable provision of the Uniform Commercial Code is \u00a7 50A-2-711, supra. We agree. Defendant also contends that under \u00a7 50A-2-711, supra, plaintiff is entitled to no more than a return of the purchase price of the vehicle. We disagree.\nThe applicable provisions of \u00a7 .50A-2-711, supra, read:\n\u201c(1) Where the . . . buyer justifiably revokes acceptance ., the buyer . . . may in addition to recovering so much of the price as has been paid\n\u201c(b) recover damages for nondelivery as provided in this article. . . . \u201d\nBuyer\u2019s damages for nondelivery are set forth in \u00a7 50A-2-713, supra. Such damages are measured by \u201cthe difference between the market price at the time when the buyer learned of the breach and the contract price.\u201d Under the evidence, \u201cnondelivery\u201d damages would be the difference between the purchase price and the market value of the vehicle with clear title. This \u201cnondelivery\u201d damage, combined with the purchase price, totals the amount of the damages awarded in this case.\nDefendant\u2019s contention is that \u201cnondelivery\u201d damages cannot be awarded because the vehicle was delivered to and used by plaintiff. This contention is answered by the statutory language. Section 50A-2-608, supra, does not condition the right to revoke an acceptance on whether the buyer has or has not physically received the goods. Rather, \u00a7 50A-2-608(3), supra, states a buyer who \u201crevokes has the same rights and duties with regard to the goods involved as if he had rejected them.\u201d Compare \u00a7\u00a7 50A-2-603 and 50A-2-604, supra.\nThe damages authorized by \u00a7 50A-2-711, supra, apply to a buyer who rightfully rejects and a buyer who justifiably revokes acceptance. Physical delivery of the goods to the buyer does not eliminate the recovery of \u201cnondelivery\u201d damages. Recovery of \u201cnondelivery\u201d damages is not conditioned on the absence of physical delivery of the goods. \u201cThe remedies listed here [\u00a7 50A-2-711, supra] are those available to a buyer who has not accepted the goods or who has justifiably revoked his acceptance.\u201d 1 ULA, Uniform Commercial Code, supra, Official Comment to \u00a7 2-711.\nThe claim that plaintiff could not recover \u201cnondelivery\u201d damages because she had physical possession of the vehicle prior to her revocation of acceptance is without merit. The amount of the damage award, under the evidence in this case, was correct under the applicable statute, \u00a7 50A-2-711, supra.\nOffset to damages.\nThe evidence is that plaintiff used the vehicle for an undetermined period of time before returning the vehicle to defendant. There is also evidence that during plaintiff\u2019s use, the vehicle had been damaged. Defendant claims an allowance for this use and damage should be set off against the damages to be recovered by plaintiff. Such an offset, in our opinion, is legally permissible. See \u00a7 50A-1-103, supra; American Container Corp. v. Hanley Trucking Corp., 111 N.J.Super. 322, 268 A.2d 313 (1970); Lanners v. Whitney, 247 Or. 223, 428 P.2d 398 (1967); Moore v. Howard Pontiac-American, Inc., 492 S.W. 2d 227 (Tenn.App.1972).\nThere is no factual basis for applying such an offset. There is evidence of use by plaintiff; however, there is neither evidence nor inference as to the reasonable value of such use. Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967). There is evidence of a dent on the right-hand side of the vehicle but neither evidence nor inference as to the monetary amount of any decrease in value resulting from the dent and neither evidence nor inference of the cost of repairing the dent. N.M.U.J.I. 14.11. Absent a basis for arriving at a monetary amount to be offset, it was not error to fail to apply an offset.\nPlaintiff asserts that defendant\u2019s appeal was taken merely for delay, and asks us to increase the damages awarded under authority of \u00a7 21-2-1(17) (3), N.M. S.A.1953 (Repl. Vol. 4). The basis for such an award is stated in Anderson v. Jenkins Construction Co., 83 N.M. 47, 487 P.2d 1352 (Ct.App.1971). That basis is not established by the record in this case. The request for an increase in the damage award is denied.\nThe judgment is affirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "William C. Madison, Branch, Dickson, Dubois & Wilson, P. A., Albuquerque, for defendant-appellant.",
      "Louis J. Vener, Albuquerque, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "519 P.2d 313\nMia GAWLICK, Plaintiff-Appellee, v. AMERICAN BUILDERS SUPPLY, INC., Defendant-Appellant.\nNo. 1329.\nCourt of Appeals of New Mexico.\nJan. 23, 1974.\nWilliam C. Madison, Branch, Dickson, Dubois & Wilson, P. A., Albuquerque, for defendant-appellant.\nLouis J. Vener, Albuquerque, for plaintiff-appellee."
  },
  "file_name": "0077-01",
  "first_page_order": 107,
  "last_page_order": 109
}