ROYCO, INC., D/B/A UNCLE ROY'S MOBILE HOME SALES, APPELLANT,
v.
JESSE O. COTTENGIM AND MARY H. COTTENGIM, HIS WIFE, APPELLEES
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Royco sold a defective mobile home to the Cottengims that failed to match the model shown and did not accommodate the buyer's wheelchair accessibility needs. The trial court allowed cancellation of the contract and recovery of payments under Florida's Uniform Commercial Code, and this appeal affirms that rescission is available regardless of whether damages would be an adequate remedy.
A buyer may cancel a sales contract and recover payments where the seller materially breaches and the buyer rightfully rejects or justifiably revokes acceptance, without needing to prove that damages are an inadequate remedy. Section 672.711 imposes no such condition on the buyer's cancellation right.
[1] A seller's material breach of a mobile home sales contract may justify the buyer's cancellation of the contract and recovery of payments made.
[2] A buyer may cancel a contract and recover payments made when a seller materially breaches the contract, even if the buyer has an adequate remedy at law.
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Join FLexlaw to unlock all legal intelligence“the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid”
The statutory language of section 672.711 granting cancellation rights to buyers upon seller's material breach
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Join FLexlaw to unlock all legal intelligenceRoyco sold a mobile home to the Cottengims that deviated from the model shown to them in three material respects: no beamed living room ceiling, no ce…
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SHARP, Judge.
Royco, Inc., d/b/a Uncle Roy’s Mobile Home Sales, appeals from a judgment, entered after a non-jury trial, which allowed the Cottengims (purchasers of a mobile home from Royco) .to cancel a contract for the purchase of a mobile home and to recover the sums they had paid Royco. The trial court ruled the Cottengims had not accepted the mobile home; Royco had materially breached the sales contract; and the Cot-tengims could cancel the contract under section 672.711, Florida Statutes (1981), even though they had an adequate remedy at law (damages). We affirm.
The trial court found Royco had breached the sales contract in three respects:1 failure to provide a mobile home with a beamed living room ceiling, as in the model shown to the purchasers when they ordered the home; failure to provide ceramic tile in the bathrooms, as in the model they were shown; and failure to provide a 36 inch-wide entry door to the mobile home. Mr. Cottengim is physically handicapped, and his wheelchair requires 36 inches for passage — a fact made known to Royco’s salesman. The record is also clear that Royco refused to remedy these defects after the mobile home was delivered to the Cotten-gims, although it was given adequate time and opportunity to do so.
Although some pre-Code Florida cases held that rescission was not an available remedy to a buyer if the breach was curable by an award of damages,2 the rule is clearly otherwise under section 672.711. It provides: (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (s. 672.612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid:
(a) “Cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or (b) Recover damages for nondelivery as provided in this chapter (s. 672.713).
§ 672.711(1), Fla.Stat. (1981). This section imposes no condition or qualification on the buyer’s right to cancel the contract where he rightfully rejects or justifiably revokes acceptance. He is no longer required to bring an equitable action for rescission,3 and, as part of that remedy, prove that damages are an inadequate remedy.4
AFFIRMED.
COBB, J., and SMITH, C. McFERRIN, A.J., concur. . Although there is conflicting evidence on some of these points, we must accept the findings of the lower court. See Cuna Mut. Ins. Soc’y v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976).
. See Willis v. Flower, 102 Fla. 34, 136 So. 358 (1931); First Nat’l Bank of Leesburg v. Mackenzie, 100 Fla. 1674, 131 So. 790(1931); Crown Ice Mach. Leasing Co. v. Sam Senter Farms, Inc., 174 So. 2d 614 (Fla. 2d DCA 1965). But see 28 Fla.Jur. Sales, § 215 (1968).
. 2 Anderson, Uniform Commercial Code § 2-711.18 (2d ed. 1971).
. See Zabriskie Chevrolet, Inc. v. Smith, 99 N.J.Super. 441, 240 A. 2d 195 (N.J.Super.Ct.Law Div.1968).
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Citator
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Cent. Fla. Antenna Serv. v. A.M. Crabtree, Jr., 503 So. 2d 1351 (Fla. 5th DCA 1987)…DCA 1978), appeal dismissed, 362 So. 2d 1054 (Fla.1978). . Before granting rescission compliance with applicable UCC provisions must be shown. See Winterbotham v. Computer Corps, Inc., 490 So. 2d 1282 (Fla. 5th DCA 1986); Royco, Inc. v. Cottengim, 427 So. 2d 759 (Fla. 5th DCA), review denied, 431 So. 2d 989 (Fla.1983). . §§ 672.102, 672.206, 672.201(1), Fla.Stat. (1985). . § 672.606(1), Fla.Stat. (1985). . See section 671.204 as to what constitutes a "reasonable time.” . Sherkate Sahami Khass Rapol v. H…
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Freddy Baker and Karen Baker v. Ilona Niess, 496 So. 2d 215 (Fla. 1st DCA 1986)…ces of this case, the decision rested largely on an evaluation of the credibility of witnesses, this court will not substitute its judgment for that of the trial court. See Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984); Royco, Inc. v. Cottengim, 427 So. 2d 759 (Fla. 5th DCA), pet. for review denied, 431 So. 2d 989 (Fla.1983); Cuna Mutual Insurance Society v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976); Biscayne Manufacturing Corp. v. Sandav Corp., 323 So. 2d 315 (Fla. 3d DCA 1975). As a final note, we obse…
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Jauregui v. Bobb's Piano Sales & Serv., Inc., 922 So. 2d 303 (Fla. 3d DCA 2006)…to cancel the deal and get his money back. See §§ 672.711, .714, Fla. Stat. (2005); Fryatt v. Lantana One, Ltd., 866 So. 2d 158 (Fla. 1st DCA 2004); Winterbotham v. Computer Corps, Inc., 490 So. 2d 1282 (Fla. 5th DCA 1986); Royco, Inc. v. Cottengim, 427 So. 2d 759 (Fla. 5th DCA 1983), review denied, 431 So. 2d 989 (Fla.1983); Carter Hawley Hale Stores, Inc., 372 So. 2d at 965; see also Music Acceptance Corp. v. Lofing, 32 Cal.App.4th 610, 39 Cal.Rptr.2d 159 (1995)(applying rule to delivery of defective piano)…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Holman Willis v. Mrs. M. C. Fowler, 102 Fla. 35 (Fla. 1931)
- Crown ICE Mach. Leasing Co. v. SAM Senter Farms, Inc., 174 So. 2d 614 (Fla. 2d DCA 1965)
- Cuna Mut. Ins. Soc'y v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976)
- The First Nat'l Bank of Leesburg v. MacKenzie, 100 Fla. 1674 (Fla. 1931)