# Cardwell v. International Housing, Inc.

> Superior Court of Pennsylvania · December 1, 1980 · 282 Pa. Super. 498

URL: https://www.frixlaw.com/law-library/cases/9516240

## Case

- **Full name:** William O. CARDWELL and Iva M. Cardwell, His Wife, v. INTERNATIONAL HOUSING, INC., T/D/B/A Palm City Mobile Homes, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** December 1, 1980
- **Citations:** 282 Pa. Super. 498; 423 A.2d 355; 31 U.C.C. Rep. Serv. (West) 512; 1980 Pa. Super. LEXIS 3441
- **Precedential status:** Published
- **Opinion:** Dissent by Spaeth
- **Judges:** Price, Spaeth, Lipez
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

SPAETH, Judge,
dissenting:
I agree with Judge PRICE that appellees timely and properly revoked their initial acceptance of mobile home No. 228 as a substitute for home No. 230; however, I do not agree that appellees reaccepted the home.
According to the Uniform Commercial Code, a buyer may be deemed to have accepted goods, even after an initial rejection or revocation of a prior acceptance, by any of the following actions:
Acceptance of goods occurs when the buyer
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
(b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
*522 (c) does any act inconsistent with the seller’s ownership but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
12A P.S. § 2-606(1), Act of April 6, 1953, P.L. 3, § 2-606, eff. July 1, 1954. Reenacted October 2, 1959, P.L. 1023, § 2, eff. January 1, 1960 (emphasis added). 1
Judge PRICE finds “numerous actions by appellees that were inconsistent with their prior revocation of acceptance in May of 1974.” (At 364) He then identifies these actions: 1) appellees’ continued residence in the home even after revocation, and their use of the home for storage after they vacated it in June 1975; 2) appellees’ making advanced rental payments to appellant for use of their home site after notice that appellant was terminating their lease; and 3) appellees’ continued monthly payments to appellant on the home even after vacating, and their final decision to terminate payments after learning that appellants did not have title to the home. (At 364-365) None of these actions, however, was inconsistent with appellees’ revocation of their acceptance. 2
In Keen v. Modern Trailer Sales, 40 Colo.App. 527 , 578 P.2d 668 (1978), the Court of Appeals of Colorado, acknowledging settled authority, held that a mobile home buyer’s continued residence in a home does not render his revocation of a prior acceptance of the home ineffective. In reversing a judgment denying the buyer’s claim for rescission of a contract to buy the home, the court stated:
*523 Numerous cases recognize that a purchaser’s occupancy of a mobile home during the pendency of his suit for rescission does not affect the legitimacy of an attempted revocation of acceptance. E. g. Stroh v. American Recreation & Mobile Home Corp., 35 Colo.App. 196 , 530 P.2d 989 (1975); Mobile Home Sales Management, Inc. v. Brown, 115 Ariz. 11 , 562 P.2d 1378 (1977); Jorgensen v. Pressnall, 274 Or. 285 , 545 P.2d 1382 (1976); Minsel v. El Rancho Mobile Home Center, Inc., 32 Mich.App. 10 , 188 N.W.2d 9 (1971).
Indeed, since the timeliness of plaintiff’s notice of revocation is not contested, the trial court’s use of this factor to determine whether plaintiff’s revocation was justifiable places the cart before the horse. For, if a revocation is justifiable, the Code vests the buyer with a security interest in the subject goods, Irrigation v. Motor & Pump Co. v. Belcher, 29 Colo.App. 343 , 483 P.2d 980 (1971) . . . and such an interest authorizes continued possession to preserve the collateral . . . subject to the seller’s right to an offset for the rental value of the possessed goods. Stroh v. American Recreation, supra; Jorgensen v. Pressnall, supra.
40 Colo.App. at 530 , 578 P.2d at 670 . 3
In Jorgensen v. Pressnall, one of the decisions cited by the Colorado court, the Supreme Court of Oregon affirmed a judgment in favor of mobile home buyers who revoked acceptance of their home in December 1972 but stayed in the home until November 1973. There the court said:
. . . plaintiffs retained a security interest in the mobile home after the revocation of acceptance. This entitled them to continue in possession to preserve their collateral. *524 Continued occupancy was the most feasible method of protecting the mobile home from water damage. The alternative was to find covered storage which would have been expensive.
274 Or. at 292 , 545 P.2d at 1385-86 .
Thus, appellees’ continued residence in the home, and their use of it for storage, after their revocation of their acceptance did not constitute a reacceptance of the home. Similarly, neither did appellees’ continued monthly payments on the home constitute a reacceptance. The purpose of these payments was only to avoid loss of the home in repossession proceedings by the bank with which appellees had financed its purchase. And the same may be said regarding appellees’ advance rental payments. Appellees made the payments only after receiving a letter from appellant terminating the oral month-to-month lease for the home site. It is clear that by making the payments in response to this letter, appellees did not reaccept the home but only acted to protect their interest in the homesite by keeping the home at its original location pending resolution of their disputes with appellant. After appellant refused to accept advanced rental, appellees tried to remove the home from appellant’s park. In so doing, they discovered that neither appellant nor the financing bank, Valley Trust Company, held title to the home. A certificate of title was required for a moving permit. Unable to obtain legal title to the home, appellees finally terminated payments to appellant in February 1976. They continued to use the home for storage until October 1976, when appellant took repossession of it.
Judge PRICE also states that appellees by their conduct “lulled appellant into a false belief that appellees would continue to retain and accept the home.” (At 366). I am unable to find any support for this statement in the record. Instead, the evidence supports the lower court’s observation that:
It was almost undisputed that the first home given to the plaintiffs was not the home they were shown by the defendant’s salesman. From the very beginning, the *525 plaintiffs made frequent requests that they be given the home shown to them and or to have the defendant repair the defects in the home or homes they were given. The testimony discloses that a period of five (5) years went by with the plaintiffs constantly in contact with the defendant requesting that the non-conformity be cured.
(Slip op. of lower court at 3)
Neither am I able to find any support for Judge PRICE’S statement that appellees “failed to display the requisite good faith.” (At 366.). Again, the record supports an opposite conclusion-that appellees were doing all they could to protect the home and their security interest in the home, all with the hope that their disputes with appellant would be resolved. Consider, for example, the following testimony by appellee William Cardwell:
Q: [Bruce Grove, counsel for appellees]: And, following the hearing in the fall of 1973 [on the criminal charges brought by International Housing against Cardwell] did you continue to reside in this 228 home?
A: Yes, sir.
Q: And on whose advice?
A: Your advice.
Q: And at this point in time what was your understanding as to how the complaints you were trying to get resolved with International Housing would be resolved?
A: Well, I was still on their property and still trying to do the right thing, still trying to get them to fix the trailers up so I could live in them-be halfway decent with that kind of money. They wouldn’t do anything.
(R.R. 86a)
Mr. Cardwell further testified that the only reason he eventually terminated payments on the home was that he learned that neither the bank nor appellant had title to the home, and feared that his payments were not protecting his security interest:
Q: [Grove]: Why did you stop paying the bank?
*526 A: Because there was no title to the trailer I had. I figured I done lost enough money in the trailer. I couldn’t get nothing done to it, so the only way I could get an action is to let it go.
(R.R. 88a)
In this regard, it should be noted that at least one court has acknowledged that a mobile home buyer who remains with a home after revoking his acceptance of it actually protects the right of the seller as well as himself:
The observation can be made at this point that plaintiffs by living in the home and maintaining it to the best of their ability were also preserving it for the benefit of the seller as well as holding it for their own security. Mobile Home Sales Management v. Brown, 115 Ariz. 11 , 562 P.2d 1378, 1382 (1977) (footnotes omitted).
It is our obligation to view the evidence in the light most favorable to appellees, and to give appellees the benefit of all reasonable inferences from the evidence. Doing so, I find the evidence sufficient to support the jury’s verdict in appellees’ favor on the theory that they had accepted the home but revoked their acceptance because of defects in the home. Therefore, I should affirm the order of the lower court.
. This section appears unchanged in the Act now replacing it; Act of Nov. 1, 1979, P.L. 255, Act No. 86 § 1, effective January 1, 1980; 13 Pa.C.S.A. § 2606(a)(1).
. Indeed, Judge PRICE seems implicitly to concede as much. Thus he says: “Because no one had the title to the number 228 home, their [appellees’] suspicion was aroused that the monthly payments were being wasted, and it was upon that premise, and not on the basis of the defects, that appellees terminated their payments in February 1976.” (At 365, emphasis added). Given this statement, with which I agree, I do not understand how the judge finds a reacceptance. If appellees acted because “no one had the title,” their action did not manifest a reacceptance.
. The security interest of the buyer is based on Section 2-711(3) of the U.C.C., which provides
On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care, and custody and may hold such goods and resell them in like manner as an aggrieved seller ....
12A P.S. § 2-711(3) (emphasis added).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516240. Public record. Not legal advice.