257 Va. 121, 509 S.E.2d 499
In the summer of 1989, John R. Crow was invited by John Atherton, a sales representative for Tidewater Yacht Agency, Inc., to ride on a new model sport fishing boat known as a 3486 Trophy Convertible manufactured by Bayliner Marine Corporation.1 Tidewater was the exclusive authorized dealer in southeastern Virginia for this model.2 During an excursion lasting about 20 minutes, Crow piloted the boat for a short period but was unable to determine its speed due to the absence of testing equipment on board.3
When Crow asked Atherton about the maximum speed, Atherton consulted two documents described as prop matrixes included by Bayliner in its dealer’s manual and provided copies to Crow.4 The prop matrixes listed the 3486 Trophy Convertible as having a maximum speed of 30 miles per hour with size “20x20” or “2019” propellers, though the purchased boat had a different propeller size, and included a disclaimer that the data was intended for comparative purposes only.5 Atherton also showed Crow a Bayliner brochure describing the model as one that delivers the kind of performance needed to get to the prime offshore fishing grounds.6
In August 1989, Crow entered into a written contract to purchase the boat for $120,000 exclusive of taxes, including equipment such as a generator, a cockpit cover, a Bimini top, and other items totaling about 2,000 pounds to be installed by Tidewater.7 Crow took delivery in September 1989 without additional test drives after the equipment installation.8
Upon taking delivery, Crow observed a maximum speed of 13 miles per hour on the Elizabeth River and reported the issue.9 Over the following 12 to 14 months, Tidewater attempted numerous repairs, but the boat achieved a maximum speed of only 17 miles per hour except for one temporary period reaching about 24 miles per hour.10 In July 1990, a Bayliner representative wrote to Crow stating that the maximum speed was 23 to 25 miles per hour.11
In 1992, Crow filed a motion for judgment against Tidewater, Bayliner, and Brunswick Corporation.12 At the 1994 bench trial, Crow and others testified that speed is critical for offshore sport fishing in the area because fishing sites are typically 90 miles from the coast.13 Crow had used the boat's engines for about 850 hours between 1989 and 1994 but stated he could not use it for offshore fishing as intended.14 The trial court entered judgment for Crow against Bayliner for $135,000 plus prejudgment interest, and Bayliner appealed to the Supreme Court of Virginia.15
Whether the statements in the prop matrixes created an express warranty by Bayliner that the boat purchased by Crow was capable of a maximum speed of 30 miles per hour?16
Under Code § 8.2-313, express warranties by the seller are created by any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.17 Express warranties are also created by any description of the goods which is made a part of the basis of the bargain.18 The issue whether a particular affirmation of fact constitutes an express warranty is generally a question of fact.19 Unlike the representation in Daughtrey, the statements in the prop matrixes did not relate to the particular boat purchased by Crow or to one having substantially similar characteristics.20
No. The prop matrixes provided by Bayliner listed maximum speeds for a boat equipped with size 20x20 or 2019 propellers and carrying substantially less equipment weight than the boat Crow purchased.21
The boat Crow bought instead had a size 20x17 propeller and included approximately 2,000 pounds of additional equipment installed by Tidewater.22 The documents also contained an explicit disclaimer stating that the data was intended for comparative purposes only and was available without reference to weather conditions or other variables.23
Because the figures in the prop matrixes did not describe the particular boat or one with substantially similar characteristics, the statements did not become part of the basis of the bargain. They therefore did not constitute an express warranty of the purchased boat's performance capabilities.24
The statements in the prop matrixes did not create an express warranty by Bayliner.25
Whether the statement in Bayliner's sales brochure created an express warranty regarding the boat's performance capabilities?26
Under Code § 8.2-313, a description of the goods that forms a basis of the bargain creates an express warranty that the goods shall conform to the description.27 Code § 8.2-313(2) directs that a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.28
No. The statement in Bayliner's sales brochure described the 3486 Trophy Convertible as delivering the kind of performance needed to get to the prime offshore fishing grounds.29
This language expressed only the manufacturer's general opinion concerning the quality of the boat's performance. It did not describe a specific characteristic or feature such as a maximum speed of 30 miles per hour. Because the statement amounted to mere commendation rather than an affirmation of fact or promise that became part of the basis of the bargain, it did not create an express warranty.30
The statement in Bayliner's sales brochure did not create an express warranty regarding the boat's performance capabilities.31
Whether the evidence supported a finding that Bayliner breached the implied warranty of merchantability because the boat was not fit for its ordinary purpose as an offshore sport fishing boat?32
Under Code § 8.2-314, a warranty is implied that goods sold by a merchant will be merchantable, meaning the goods must pass without objection in the trade and be fit for the ordinary purposes for which such goods are used.33 To prove a product is not merchantable, the complaining party must establish the standard of merchantability in the trade.34 The complaining party must also show that a significant segment of the buying public would object to the goods or that the goods are not reasonably capable of performing their ordinary functions.35
No. The record contained no evidence of the standard of merchantability in the offshore fishing boat trade. Nor was there any indication that a significant portion of the boat-buying public would object to purchasing an offshore fishing boat with the speed capability of the 3486 Trophy Convertible.36
Although Crow testified that the boat's speed was inadequate for his intended use, this testimony did not address the trade standard or whether the boat failed to meet it.37 He had used the engines for 850 hours while making limited use of the boat for fishing after 1991 or 1992.38 The uncontroverted evidence showed that Crow used the boat for offshore fishing during the first few years after purchase. Nothing established that a boat achieving a maximum speed of 17 miles per hour generally would not pass without objection in the trade or was unfit for ordinary offshore sport fishing purposes.
The evidence did not support a finding that Bayliner breached the implied warranty of merchantability.39
Whether the evidence supported a finding that Bayliner breached the implied warranty of fitness for a particular purpose based on Crow's intended use of the boat?40
Under Code § 8.2-315, when a seller has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.41 To establish this warranty, the buyer must prove as a threshold matter that he made known to the seller the particular purpose for which the goods were required.42
No. Although Crow informed Atherton that he intended to use the boat for offshore fishing and discussed the boat's speed in that context, these facts did not establish that Atherton knew on the date of sale that a boat incapable of traveling at 30 miles per hour was unacceptable to Crow.43
The record does not support a conclusion that Crow informed Atherton of the precise requirement that the boat achieve a maximum speed of 30 miles per hour.44 Without evidence that this specific particular purpose was made known to the seller, the threshold element for an implied warranty of fitness for a particular purpose was not satisfied.45
The evidence did not support a finding that Bayliner breached the implied warranty of fitness for a particular purpose.46