In this case, the defendant does not dispute the content of its salesperson's representations to the plaintiffs. The meaning of a statement as a contract term between parties is a question of fact, see Werner v. Montana, 117 N.H. 721, 727, 378 A.2d 1130, 1134 (1977), which we will not overturn unless "no rational trier of fact could come to the conclusion that the trial court has reached," Carrier v. McLlarky, 141 N.H. 738, 739-40, 693 A.2d 76, 78 (1997) (quotation omitted). The evidence supports a finding that the salesperson provided an express warranty that the defendant would repair any problem discovered by an independent mechanic's examination within thirty days of the sale.
See RSA 382-A:2-316(1); Wilson Trading Corp. v. David Ferguson, Ltd., 297 N.Y.S.2d 108, 113-14, 244 N.E.2d 685, 688-89 (1968). If the master finds that the plaintiff breached any of its express warranties, see Werner v. Montana, 117 N.H. 721, 728, 378 A.2d 1130, 1134 (1977), and that the defendant notified the plaintiff of such breach within a reasonable time after discovering it, see RSA 382-A:2-607(3)(a), he should then decide what remedies are available to the defendant under the Uniform Commercial Code. At trial, the defendant sought to revoke his acceptance, see RSA 382-A:2-608, or, in the alternative, to recover damages for breach of warranty.
This position overlooks the testimony that the vehicle still "shimmied" after numerous attempts to repair it and that the "shimmy" existed at the time the plaintiffs revoked their acceptance. It is not necessary that the plaintiffs establish the cause of the defect. See Werner v. Montana, 117 N.H. 721, 728, 378 A.2d 1130, 1135 (1977). The plaintiffs need only prove that there was a non-conformity that substantially impaired the value of the motor vehicle to them.
Prior to the making of the contract, appellant had experienced boat builders observe the boat, but there was no testing of the vessel in the water. Such a warranty (seaworthiness) necessarily relates to the time when the vessel has been put to sea ( Werner v. Montana (1977) 117 N.H. 721 [ 378 A.2d 1130, 1134-1135]) and has been shown to be reasonably fit and adequate in materials, construction, and equipment for its intended purposes ( Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 739 [ 144 Cal.Rptr. 380, 575 P.2d 1162]; Vittone v. American President Lines (1964) 228 Cal.App.2d 689, 693-694 [ 39 Cal.Rptr. 758]). Evidence was presented of examination or inspection of the boat after the making of the contract of sale and prior to delivery and acceptance of the vessel.
Courts in a majority of jurisdictions, therefore, take the position that a seller has no right to cure nonconformities prior to revocation under UCC § 2-608(1)(b), that is, where the goods are accepted by the buyer without knowledge that it fails to conform to the sales contract. See, e.g., Preston Motor Co. v. Palomares, 133 Ariz. 245, 650 P.2d 1227, 1231 (Ariz. 1982); Werner v. Montana, 117 N.H. 721, 378 A.2d 1130, 1136-37 (1977); American Honda Motor Co., Inc. v. Boyd, 475 So.2d 835, 839-40 (Ala. 1985) (holding that where buyer purchased a car, believing it to be new, and in fact the car was previously damaged and repaired, and buyer did not discover this until after it had accepted car, the case fell under UCC § 2-608(1)(b), and therefore, there was no right to cure); U.S. Roofing, Inc. v. Credit Alliance Corp., 228 Cal. App.3d 1431, 279 Cal.Rptr. 533, 540 (Cal. App.3d Dist. 1991) (categorically stating that "[we] believe that the right to cure under [UCC § 2-508] does not apply to situations where the buyer seeks to revoke his acceptance under [UCC § 2-608]"); Jensen v. Seigel Mobile Homes Group, 105 Idaho 189, 668 P.2d 65, 69-70 (1983) (holding that right to cure is relevant only when there has been a rejection of goods; following acceptance there is no right to cure, citing authorities for the proposition that cure is not available following the buyer's acceptance of goods); Head v. Phillips Camper Sales
Levine, 49 Md.App. at 552-53, 433 A.2d at 1222. Compare Werner v. Montana, 117 N.H. 721, 731, 378 A.2d 1130, 1136 (1977) (seller does not have a right to cure where the buyer revokes acceptance), with Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976) (court found that the seller has a right to cure, and cited to § 2-508 as authority). In Levine, the Court of Special Appeals found it unnecessary to decide whether to recognize a general right to cure under § 2-608.
(citing Unif. Commercial Code § 4 U.L.A. 63 (1995))); Gappelberg v. Landrum , 666 S.W.2d 88, 90 (Tex. 1984) ("The only reference to cure in [ section 2-608 ] is in situations when the buyer knew of the defects at the time of acceptance of the goods."); Johannsen v. Minnesota Valley Ford Tractor Co. , 304 N.W.2d 654, 657 (Minn. 1981) ("[T]he seller has no right to cure defects which substantially impair the good's value."); Werner v. Montana , 117 N.H. 721, 378 A.2d 1130, 1136-37 (1977) ("In the context of revocation, [ section 2-608(1)(a) ] speaks to the seller's opportunity to seasonably cure a defect," as distinguished from subsection (1)(b).). ¶ 21 Notably, although it appears that the courts in some of our sister states would rule to the contrary, we did not find a case in which a court expressly interpreted the statutory language and found that subsection (1)(b) required that the buyer give the seller an opportunity to cure.
We need not reach that issue here, however, as the remedy is available under another claim upon which the plaintiff prevailed. See Handley, 147 N.H. at 189-90 (decision of trial court will be upheld "if there are valid alternative grounds to support it"). Specifically, we conclude that the remedy is sustainable as enforcement of a revocation after acceptance under the Uniform Commercial Code. See Werner v. Montana, 117 N.H. 721, 729 (1977) (noting that "other courts have held, and commentators agree, that rescission and revocation of acceptance amount to the same thing under the Uniform Commercial Code, particularly since cancellation is a remedy available to a buyer who has established revocation of acceptance"). The trial court granted a proposed ruling that "[t]he Plaintiffs actions were acceptable under RSA 382-A:2-608."
However, whether the representation was part of the basis of the bargain is a factual determination that should have been decided by the jury. See Werner v. Montana, 117 N.H. 721, 726 (1977) (analyzing evidence, which was presented at trial, from which the fact finder could conclude that the affirmations constituted an express warranty); Chellman, 138 N.H. at 82. Here, the jury heard evidence from which it could have concluded that the representations in the catalog were part of the basis of the bargain.
Once those circumstances have been determined, we proceed to an objective determination of whether the nonconformity would substantially impair the value of the automobile to a reasonable person in the circumstances of the buyer. For cases accepting the subjective standard of Section 2-608 but viewing it with some degree of objectivity see Keen v. Modern Trailer Sales, Inc., 40 Colo. App. 527, 578 P.2d 668, 24 UCC 881 (1978); Werner v. Montana, 117 N.H. 721, 378 A.2d 1130, 22 UCC 894 (1977); Asciolla v. Manter Oldsmobile-Pontiac, Inc., 117 N.H. 85, 370 A.2d 270, 21 UCC 112 (1977); Stamm v. Wilder Travel Trailers, 44 Ill. App.3d 530, 3 Ill.Dec. 215, 358 N.E.2d 382 20 UCC 1142 (1976); Stroh v. American Recreation Mobile Home Corp. of Colo., 35 Colo. App. 196, 530 P.2d 989, 16 UCC 726 (1975); Overland Bond Investment Corp. v. Howard, 9 Ill. App.3d 348, 292 N.E.2d 168, 11 UCC 945 (1972). Rester's circumstances are set forth adequately above.