Ventura v. Ford Motor Corporation,

433 A.2d 801 (1981)

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Nature of the Case

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Facts

P purchased and took delivery of a new automobile on April 12, 1978. P experienced engine hesitation and stalling problems from the very beginning. The engine problems continued without interruption despite repeated attempts by Marino Auto (D) to cure the problem. P wanted to return the car and get all his money back. He tried that and was forcibly ejected from Marino’s (D) premises. The contract of sale between Marino Auto (D) and P conspicuously contained the following legend on its face: The seller, MARINO AUTO SALES, Inc., hereby expressly disclaims all warranties, either expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, and MARINO AUTO SALES, Inc., neither assumes nor authorizes another person to assume for it any liability in connection with the sale of the vehicle. On the back of this sales order-contract were the following terms which were made part of the contract: 7. It is expressly agreed that there are no warranties, express or implied, made by either the selling dealer or the manufacturer on the motor vehicle, chassis or parts furnished hereunder except, in the case of a new motor vehicle the warranty expressly given to the purchaser upon the delivery of such motor vehicle or chassis. The selling dealer also agrees to promptly perform and fulfill all terms and conditions of the owner service policy. On delivery, P was also given a copy of D’s express warranty on the car. P sued Ds for rescission. Marino (D) filed suit seeking indemnification from D. D used Marino’s (D) contract to claim that P could not make a claim against Marino (D) because it effectively disclaimed all express and implied warranties. D also claimed that Marino (D) could not seek indemnification because, under Magnuson-Moss, rescission of a contract is not a remedy for breach of a limited warranty given to P. The court held for P and allowed Marino (D) indemnification. D appealed.