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General Motors Acceptance Corp v. Grady 501 N.E.2d 68 1985

General Motors Acceptance Corp v. Grady 501 N.E.2d 68 1985

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Published by Thalia Sanders

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Published by: Thalia Sanders on Aug 30, 2010
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Westlaw Delivery Summary Report for PATRON ACCESS,-
Date/Time of Request: Monday, August 30, 2010 12:25 EasternClient Identifier: PATRON ACCESSDatabase: OH-CSCitation Text: 501 N.E.2d 68Lines: 351Documents: 1Images: 0
11.2 Right to Cure Contract Sales and Lease Contracts: Performance and Breach
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,West and their affiliates.
 
Court of Appeals of Ohio, Ninth District, SummitCounty.GENERAL MOTORS ACCEPTANCE CORPOR-ATION, Cross-Appellee,v.GRADY, Appellee and Cross-Appellant;Al Thompson Chevrolet, Inc., Appellant and Cross-Appellee.
Nos. 12006 and 12007.
Oct. 30, 1985.Assignee of retail installment automobile salesagreement filed suit to recover automobile due tobuyer's refusal to make further payments. The trialcourt entered judgment for buyer on third-partycomplaint against dealer and for assignee againstbuyer. On appeal, the Court of Appeals for SummitCounty, Baird, J., held that: (1) disclaimer in pur-chase order was not conspicuous; (2) disclaimer ininstallment contract, though conspicuous, could notbe given effect because it was inconsistent withpurchase order; (3) buyer had given dealer reason-able opportunity to cure defects; (4) disclaimer ininstallment contract was also ineffective as to as-signee thereof; and (5) buyer was entitled to refundof down payment from dealer and to refund of pay-ment made from assignee.Affirmed as modified.West Headnotes
[1]Sales 343 267
343Sales343VIWarranties343k265Implied Warranty of Quality, Fit- ness, or Condition343k267k. Exclusion by Contract or Ex-press Warranty or Refusal to Warrant.Most CitedCasesFinding that warranty disclaimer in automobile pur-chase order was not conspicuous was supported byevidence that disclaimer was not accentuated byany difference in color or size of type and was notset off by border, indentation, or other distinctivecharacteristic and that area where disclaimer waslocated was written over by sales agent.R.C. §§1301.01(J),1302.29(B).
[2]Sales 343 267
343Sales343VIWarranties343k265Implied Warranty of Quality, Fit- ness, or Condition343k267k. Exclusion by Contract or Ex-press Warranty or Refusal to Warrant.Most CitedCasesAutomobile dealer had not validly disclaimed war-ranties of merchantability and fitness for particularpurpose, notwithstanding conspicuous disclaimer of those warranties in collateral retail installment salesagreement; disclaimer was inconsistent with termsand conditions of sale as set forth in purchase orderand could not be given effect, as purchase orderprovided that all terms and conditions of sale werecontained therein and disclaimer in purchase orderwas not conspicuous.R.C. §§ 1301.01(J), 1302.05(B),1302.29(A, B).
[3]Sales 343 182(1)
343Sales343IVPerformance of Contract343IV(C)Delivery and Acceptance of Goods 343k182Questions for Jury343k182(1)k. In General.Most Cited CasesQuestion of what is “reasonable” time for seller to“cure” defects in item tendered when buyer rejectsnonconforming tender is question of fact dependentupon nature, purpose, and circumstances of actiontaken to cure that defect.R.C. §§ 1301.10(B), 1302.52(B).501 N.E.2d 68 Page 127 Ohio App.3d 321, 501 N.E.2d 68, 27 O.B.R. 378, 2 UCC Rep.Serv.2d 887
(Cite as: 27 Ohio App.3d 321, 501 N.E.2d 68)
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
[4]Sales 343 181(12)
343Sales343IVPerformance of Contract343IV(C)Delivery and Acceptance of Goods 343k181Evidence343k181(11)Weight andSufficiency343k181(12)k. Quality or Fitnessof Property.Most Cited CasesFinding that buyer had given dealer adequate op-portunity to cure defects in automobile was suppor-ted by evidence that buyer had taken automobile todealer on three occasions within first month of pur-chase for servicing and had attempted to do so onone other occasion and that dealer was either un-willing or unable to fix automobile.R.C. §§1301.10(B),1302.52(B).
[5]Secured Transactions 349A 185.1
349ASecured Transactions349AVAssignments of Security Interests andAssignments Creating Security Interests349Ak 185Equities and Defenses Against Assignee349Ak185.1k. In General.Most CitedCases(Formerly 349Ak185)Disclaimer of implied warranties in retail sales in-stallment contract that was ineffective as to dealerwas also ineffective as to assignee of that contract,which was subject to defenses that could be asser-ted against dealer.R.C. §§ 1317.031,1317.032.
[6]Sales 343 442(2)
343Sales343VIIIRemedies of Buyer343VIII(D)Actions and Counterclaims for Breach of Warranty343k442Damages343k442(2)k. Difference Between Ac-tual Value and Value as Warranted.Most CitedCasesMeasure of damages for breach of warranty neednot be limited to difference between value of goodsaccepted and value they would have had if they hadbeen as warranted, and any loss resulting frombreach may be recovered and may be determined inany manner which is reasonable.R.C. § 1302.88(A).
[7]Sales 343 391(8)
343Sales343VIIIRemedies of Buyer343VIII(A)Recovery of Price 343k391Right of Action343k391(8)k. Breach of Warranty.Most Cited CasesBuyer of automobile was entitled to refund of downpayment from dealer that had breached impliedwarranty and of payment that was made on retailinstallment sales contract from assignee of that con-tract.R.C. §§ 1301.06(A),1302.88(A).
**69
Syllabus by the Court 
*321
1. Where a buyer purchases an automobile bysigning a purchase order with the dealer whichprovides that “all terms and conditions of this saleare contained” in this order, the dealer may not val-idly disclaim warranties by a collateral agreement,such as a retail installment sales agreement.2. Pursuant toR.C. 1302.52(B), where the buyer re-  jects a nonconforming tender, the seller has a“reasonable time” to “cure” the defects. The term“reasonable time” is a question of fact dependentupon the nature, purpose and circumstances of theaction taken to cure the defects.(R.C. 1301.10[B], applied.)3. The measure of damages for breach of warrantyneed not be limited to the difference between thevalue of the goods accepted and the value theywould have had if they had been as warranted. Anyloss resulting from the breach may be recoveredand may be determined in any manner which isreasonable.(R.C. 1302.88, applied.) L.A. Seikel, Jr., Akron, for General Motors Accept-ance Corp.501 N.E.2d 68 Page 227 Ohio App.3d 321, 501 N.E.2d 68, 27 O.B.R. 378, 2 UCC Rep.Serv.2d 887
(Cite as: 27 Ohio App.3d 321, 501 N.E.2d 68)
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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