(20 15) Zhejiang hangshang zhongziNo. 1293 civil judgment

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Zhang v. Zhejiang Chengfeng Construction Machinery Co., Ltd. Civil Judgment on Disputes over Sales Contract

Court: Hangzhou Intermediate People's Court, Zhejiang Province

Case number: (20 15) Zhejiang-Hangzhou-Shanghai Chinese character. 1293

Appellant: Zhang.

Authorized Agent (Special Authorized Agent): Xu Shuxue.

Authorized Agent: Zhang Enfa.

Appellee (plaintiff in the original trial and defendant in counterclaim): Zhejiang Chengfeng Construction Machinery Co., Ltd.

Legal Representative: Yan Feng.

Authorized Agent: Bird.

Defendant in the original trial: Li Wenzhong.

The appellant Zhang Yin refused to accept the civil judgment of Jianggan District People's Court of Hangzhou, Zhejiang Province (20 14)No. 1839 in the case of the dispute over the sales contract with the appellee Zhejiang Chengfeng Construction Machinery Co., Ltd. (hereinafter referred to as Chengfeng Company) and the defendant in the original trial. After accepting the case on May 20 19 15, our hospital formed a collegial panel to hear the case according to law. The case has now been closed.

The court of first instance found that on February 20, 2002, 2065438, Chengfeng Company and Zhang signed the Purchase and Sale Contract of Construction Machinery (No.:FQ0000773), and agreed that Zhang would buy a Sany brand SY75 excavator from Chengfeng Company at a price of 432,000 yuan. Zhang paid the down payment of 6,543,800 yuan+300,000 yuan, the balance of 302,000 yuan and interest of 20,000 yuan before taking delivery of the goods. Zhang will pay 50,000 yuan in installments before August 30, 2065.438+02, and 6,543.8+00,000 yuan in installments before February 8, 2065.438+03. Chengfeng Company is responsible for the quality conditions and time limit as follows: Three Guarantees, with a time limit of 12 months or 2,000 hours, whichever comes first, except for wearing parts. See Sany warranty card for details. During the three-guarantee period, Party B will not bear the lost time caused by quality problems. During the warranty period, the mechanical products delivered by Chengfeng Company fail, and Chengfeng Company shall send someone to repair them in time. However, the mechanical damage caused by accidents or driver's operation errors does not belong to the scope of the three guarantees, and the company does not assume the warranty responsibility; When Zhang fails to pay the due amount in time according to the provisions of this contract, it will be regarded as a major breach of contract. Chengfeng Company has the right to directly deduct the performance bond paid by Zhang as a fine, and at the same time charge Zhang a late fee of 0.5% of the overdue amount per day. At the same time, Chengfeng Company can stop after-sales service, stop the machine, lock the machine, tow away the machine and other forms to urge Zhang Jishi to pay off the arrears and liquidated damages, and all expenses arising therefrom shall be borne by Zhang. If Zhang has been overdue for more than three times or for more than two consecutive months, Chengfeng Company has the right to ask Zhang to pay all the arrears. Be jointly and severally liable for Zhang's repayment obligations, and the guarantee period is two years from the expiration of Zhang's debt performance period. On February 2, 2065438, KLOC-0, Chengfeng Company delivered the Sany SY75 excavator under the above contract, and Zhang signed the sales receipt confirmation. Zhang paid RMB 320,000 in succession, and still owed RMB132,000. 20 14129 October, He, a staff member of 65438+ Chengfeng Company, issued a payment instruction saying that "customer Zhang claimed that there was something wrong with the excavator. To show sincerity in cooperation, customer Zhang agreed to pay 50,000 yuan in installments, and the balance was settled in one lump sum. Before the problem is solved, the customer does not need to pay the overdue interest on the balance. " Chengfeng Company claims that He Liangjian is the creditor of Jiaxing Chengfeng Company and Zhou Haiying is the creditor director of Chengfeng Company. In the lawsuit, Zhang had no objection to the arrears, claiming that the air conditioning system of the excavator he bought was paralyzed in July or August of 20 12, the hydraulic system of the boom was weak in June of 20 12, and the exterior paint fell off in February of 20 13. Chengfeng Company said that the problem of air conditioning was reported to Chengfeng Company in the summer of 20 12, the problem of paint peeling was reported at the end of 20 13, and the hydraulic system of the boom was reported at the end of 20 13, but the lack of supporting angle is not a fault and does not affect the work of the excavator. It was also found that the court of first instance went to Tongxiang City, Zhejiang Province on March 26, 20 15 to conduct an on-site inspection of the excavator involved. The excavator is in a first-class locking state, and the paint on the outside of the excavator falls off. The dashboard of the excavator cab showed that the working hours were 06 163h5 1m, and the court of first instance took photos of the excavator, which were taken by Zhang's husband Xu Shuxue and the after-sales person in charge of Chengfeng Company. In the lawsuit, Chengfeng Company promised to repair the air conditioner and exterior wall paint under the condition of Zhang's payment. After explanation, Zhang did not apply for the identification of arm weakness.

The court of first instance held that the meaning of the Sales Contract for Construction Machinery signed by Chengfeng Company and Zhang was true and did not violate the mandatory provisions of the law. It should be valid and both parties should fulfill their contractual obligations. Chengfeng Company shall deliver the excavator within the warranty period and undertake the corresponding maintenance responsibilities. Chengfeng Company believes that Zhang reported the air-conditioning problem to Chengfeng Company in the summer of 20 12, and Chengfeng Company also expressed its willingness to repair the air-conditioning problem in the lawsuit, so Chengfeng Company has the obligation to repair the air-conditioning problem. Although Chengfeng Company claimed that it was the end of 20 13 that Zhang reflected the peeling problem of the exterior paint, which exceeded the warranty period, it promised to repair the exterior paint, so the court of first instance supported Zhang's request for Chengfeng Company to repair the exterior paint problem of the excavator. Regarding Zhang's claim that the excavator's boom is weak, although the payment statement mentioned the excavator's problem, it was "the customer Zhang claimed that there was a problem". Chengfeng Company did not admit the problem of weak boom in the payment statement, and it was not obvious that the excavators sold were weak after the field inspection by the court of first instance. According to the court of first instance, Zhang did not apply to identify the weakness of the excavator boom, and the evidence cited by Zhang could not prove the problem. Regarding Chengfeng Company's request for Zhang to pay the payment of 6,543,800+032,000 yuan and liquidated damages, although Zhang has no objection to paying the arrears of 6,543,800 yuan, it is stated in the payment instructions that "the balance and other issues will be settled in one time, and the customer does not need to pay the overdue interest on the balance before the problem is solved". The payment instruction was issued by Chengfeng employees and He, because. He is the creditor manager of Jiaxing District of Chengfeng Company. The court of first instance held that, when collecting the creditor's rights on behalf of Chengfeng Company, He had the right to make the above commitments on behalf of Chengfeng Company. According to the existing evidence and Chengfeng Company's admission, the excavator has quality problems in air conditioning and exterior wall paint, so Zhang can refuse to pay the purchase price and overdue liquidated damages before Chengfeng Company completes the maintenance of air conditioning and exterior wall paint. After Chengfeng Company completed the maintenance of air conditioning and exterior wall paint, Zhang's payment obligation provided joint liability guarantee, and the guarantee period did not exceed, so it should bear joint liability for Zhang's debts. Regarding Zhang's claim that Chengfeng Company should compensate the economic loss of 1 1000 yuan, Zhang's evidence could not prove his loss, and the court of first instance did not support this claim. To sum up, the court of first instance supported part of the application of Chengfeng Company and part of the application of Zhang. Accordingly, in accordance with Articles 8, 60, 107, 159 and 161 of People's Republic of China (PRC) Contract Law and Articles 6, 18 and 21 of People's Republic of China (PRC) Guarantee Law, it is decided that: 1 Chengfeng Company painted the air conditioner and appearance of a Sany brand SY75 excavator and sold it to Zhang. 2. Zhang pays Chengfeng Company the payment of RMB 65,438+032,000, which shall be paid within ten days from the date when Chengfeng Company performs the above-mentioned first responsibility. Three. Li Wenzhong is jointly and severally liable for the above second debt. 4. Reject other claims of Chengfeng Company. 5. Reject Zhang's other claims. If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC). The acceptance fee for this case shall be charged by half according to the regulations, and Chengfeng Company shall bear 65,438 yuan+0,683.50 yuan, and Zhang and Zhang shall bear 65,438 yuan +0.470 yuan. The counterclaim case acceptance fee is 65,438 yuan+0,250 yuan, which shall be borne by Zhang; Zhang, the litigation costs should be paid to the court of first instance within three days from the effective date of this judgment.

After the verdict was pronounced, Zhang refused to accept the above-mentioned civil judgment of the court of first instance and appealed to our court, saying: 1. The evidence provided by Zhang can prove that the excavator provided by Chengfeng Company has serious quality defects, including air conditioning and exterior paint falling off, arm weakness and so on. The court of first instance denied the relevant facts and supported Chengfeng's wrong claim. 2. Due to the defects of the excavator, the Payment Commitment Letter issued by the person in charge of Chengfeng Company and He Yu on 20 14 1.2 clearly stated that there is no need to pay overdue interest before the problem is solved. However, Chengfeng Company violated this promise and locked the excavator on August 28th, 2004, citing Zhang's "failure to pay for the goods", resulting in Zhang's direct economic loss of 105000 yuan. In addition, in order to avoid further losses, the rental and storage fee of the excavator is 28,900 yuan, and the air conditioner of the excavator cannot be used normally, resulting in losses. The court of first instance did not support Zhang's above-mentioned claim, but did not support it because of insufficient evidence. According to the common sense of life, Chengfeng Company's lock-up for 7 months will cause losses to Zhang. The fact that Chengfeng Company broke the contract to lock the machine obviously exists and it should bear the liability for breach of contract. To sum up, the court of second instance is requested to cancel the original judgment according to law, and the company is judged to replace Zhang with a qualified excavator of the same type, and compensate Zhang for direct economic losses of 160900 yuan. The litigation costs of the first and second trials of this case shall be borne by Chengfeng Company.

Chengfeng Company replied that the court of first instance found that Zhang owed Chengfeng Company a payment of RMB132,000, and the facts were clear and the evidence was sufficient, which was recognized by Zhang and his guarantor. In counterclaim and appeal of first instance, Zhang claimed that the excavator in this case had major quality defects, which were not recognized by the court of first instance. The specific facts are as follows: 1. Zhang complained that the excavator had serious quality defects, but during the two and a half years from February 20 12 to August 20 14, the working hours of the excavator reached 6 164 hours, excluding rainy days and Spring Festival every year. This data just shows that the excavator is in stable working condition and the quality is normal. 2. According to Zhang's repayment record, the repayment was 20,000 yuan on August 3 1, 20 1, 65,438+4,000 yuan on September 1, and 60,000 yuan on February 9, 3. From the above records, we can find that Zhang's legal consciousness is weak, he doesn't obey the rules and doesn't keep his word. From the repayment date of the first phase of the contract (2065438+August 30th, 2002), Zhang began to violate the contractual obligations and overdue the repayment. Under the repeated urging of Chengfeng Company, Zhang defaulted on the purchase price on the grounds that the excavator had major quality defects. According to the contract, Zhang paid all the payment on 20 14 65438+ 10 30 (before the end of the lunar calendar). 2014 65438+129 October, the dunning staff of Chengfeng Company came to the door for dunning, and Zhang asked to write down the "payment instructions" before he was willing to pay 50,000 yuan, which reflected the existence of the excavator proposed by the customer Zhang. Later, the service vice president, creditor's rights director and engineer of Chengfeng Company inspected the excavator together, but found no major quality defects mentioned by Zhang, and asked Zhang to pay off all the payment one by one. When he refused to pay, Chengfeng Company took remote locking measures according to the contract. Thirdly, according to the investigation of the excavator by the court of first instance, the excavator was operated by Zhang's spouse, vice president of service and engineer of Chengfeng Company, and no major quality defects were found in the excavator. The court of first instance has recorded the operation process. Based on the above facts and reasons, the facts identified by the court of first instance are clear and the evidence is sufficient; The applicable law is correct and the procedure is legal. Request the court of second instance to reject Zhang's claim according to law and uphold the original judgment.

During the second trial, Zhang submitted the following evidence materials to our hospital: two settlement lists of excavators issued by Tongxiang Jinxing Earthwork Engineering Co., Ltd. and Tongxiang Jiefeng Earthwork Engineering Co., Ltd., which prove that excavators work during the day in summer and the working hours are relatively shortened due to abnormal operation of air conditioners; Because Chengfeng Company locked the machine, the loss expanded. After cross-examination, Chengfeng Company has no objection to the authenticity of the evidence provided by Zhang, but thinks that it has nothing to do with this case, and only explains the work settlement amount in April and August of 20 14. This set of evidence shows that the excavator works normally. The court believes that the evidence provided by Zhang is irrelevant to this case and will not confirm it.

Chengfeng Company and Zhang confirmed in the second trial that Zhang paid 20,000 yuan and13 on August 3, 2065438, 20 12, September 2065438, 20 13 and February 9, respectively. The rest of the facts are consistent with the facts identified by the court of first instance and confirmed.

We believe that Articles 3, 6, 1 7 of the Sales Contract for Construction Machinery signed by Chengfeng Company and Zhang clearly stipulate the payment method and time limit, the retention of the ownership of the subject matter and the liability for breach of contract. In this case, Zhang failed to pay the due amount in time according to the contract, and the ownership of the excavator involved has not been transferred. To this end, Chengfeng Company adopted the methods of stopping and locking the machine to urge Zhang to pay the payable goods according to the contract agreed by both parties. The Payment Letter issued by Zhang Yicheng Company claimed that Chengfeng Company breached the contract, but the Payment Letter did not specify the quality problem of the excavator. Although Zhang claims that the excavator has quality defects such as air conditioning and paint peeling, from the actual use of the excavator, these two things do not constitute a fundamental breach of contract. Zhang claimed that the excavator had arm weakness, but he did not provide evidence to prove it, and should bear the adverse consequences of failing to provide evidence. Zhang refused to pay the remaining payment on the grounds of quality problems, and his request for compensation for economic losses from Chengfeng Company could not be established. The court of first instance ruled that after Chengfeng Company repaired the air conditioner and external paint of the excavator, Zhang paid the purchase price properly. To sum up, the original judgment found that the facts were clear and the procedure was legal, and the appellant Zhang's appeal grounds could not be established, so our court did not support her appeal request. According to Article 170, Paragraph 1 (1) and Article 175 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

Reject the appeal and uphold the original judgment.

The acceptance fee for the second instance case is 3,367 yuan, which shall be borne by Zhang.

This is the final judgment.

Presiding judge Huang Jiangping

Judge Cui Li.

Acting judge Xia

201June 29, 5

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