Bekkevold v. Potts

• Decision Date: 02 December 1927
• Docket Number: No. 26309.,26309.
• Citation: 216 N.W. 790,173 Minn. 87
• Parties: BEKKEVOLD v. POTTS et al.
• Court: Minnesota Supreme Court

216 N.W. 790

173 Minn. 87

BEKKEVOLD v. POTTS et al.

No. 26309.

Supreme Court of Minnesota.

December 2, 1927.

Appeal from District Court, Hennepin County; E. F. Waite, Judge.

Action by John Bekkevold against William J. Potts and others. From an order denying their alternative motion for judgment non obstante or for a new trial, defendants appeal. Affirmed.

Prendergast & Flannery, of Minneapolis, for appellants.

Clyde C. Johnson and E. S. Slater, both of Minneapolis, for respondent.

WILSON, C. J.

Defendants appealed from an order denying their alternative motion for judgment non obstante or a new trial.

The action is to recover money paid upon the purchase price of a Fordson tractor, a two-wheel truck used as a trailer, a connecting hitch, and a hydraulic hoist for unloading.

1 and 2. The contract of sale contained a printed provision:

"No warranties have been made in reference to said motor vehicle by the seller to the buyer unless expressly written hereon at the date of purchase."

None were written thereon.

The proofs, received over the objection that it was in violation of the parol evidence rule, showed that the seller knew the particular purpose for which the outfit was to be used, and that the buyer relied upon the seller's judgment that it was suitable. There was, therefore, an implied warranty, unless excluded by the said language of the contract, that the machinery was reasonably fit for such purpose. G. S. 1923, § 8390, subd. 1. If such implied warranty was so excluded, the evidence was erroneously received, otherwise not.

Such an implied warranty of the fitness of an article sold, under such circumstances, for the purpose for which it is to be used, is superseded by an express warranty covering the same matter only if inconsistent therewith. G. S. 1923, § 8390, subd. 6. If there be an inconsistent express warranty that covers only a part of the matters covered by an implied warranty, the purchaser may avail himself of as much of the implied warranty as is not covered by such express warranty. It is only when an implied warranty is inconsistent with an express provision of the contract that all implied warranties are merged in, or superseded by, the express provisions of the contract. In other words, warranties are not implied in conflict with the express terms of the contract. It has always been competent for the parties to put their entire agreement in writing and to expressly stipulate that no obligation arising out of an oral agreement, imposition of law, or otherwise, shall rest upon either, save as defined by their written agreement. If the parties wish to avoid the implied warranty, they must in form, or in substance, contract against it.

An implied warranty is not one of the contractual elements of an agreement. It is not one of the essential elements to be stated in the contract, nor does its application or effective existence rest or depend upon the affirmative intention of the parties. It is a child of the law. It, because of the acts of the parties, is imposed by the law. It arises independently and outside of the contract. The law annexes it to the contract. It writes it, by implication, into the contract which the parties have made. Its origin and use are to promote high standards in business and to discourage sharp dealings. It rests upon the principle that "honesty is the best policy," and it contemplates business transactions in which both parties may profit. Defendants' claim does not commend itself to us as consistent with the honesty of purpose with which they are entitled to be credited in their dealings with their customers. The doctrine of implied warranty should be extended rather than restricted.

In Hooven & Allison Co. v. Wirtz, 15 N. D. 477, 107 N. W. 1078, the contract stated:

"No agreement, condition, or stipulation, verbal or otherwise * * * will be recognized."

The court held that this related exclusively to warranties by agreement, by contract, verbal or written, or express warranties; and not to implied warranties which are not matters of agreement but arise by operation of law. This rule was followed in Comptograph Co. v. Citizens' Bank, 32 N. D. 59, 155 N. W. 680.

In Minneapolis Steel & Machinery Co. v. Casey Land Agency, 51 N. D. 832, 201 N. W. 172, the contract made certain express warranties, and then stated the "instrument comprises the entire contract between the parties * * * and any verbal * * * agreements outside of, or contradictory to, the foregoing terms and warranty are * * * void." The court said:

"The stipulation is that they comprise the entire contract between the parties. Inasmuch as the warranties implied by law arise independently and outside of the contract, this provision does not exclude implied warranties."

In Colt Co. v. Bridges, 162 Ga. 154, 132 S. E. 889, the contract states:

"This instrument * * * covers all the agreements between the purchaser and the company."

It expressly warranted the apparatus "a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters." Held, that the implied warranty of suitableness for use sold was not excluded.

Our decisions touch only some of the fundamentals involved. Lynch v. Curfman, 65 Minn. 170, 68 N. W. 5; Kitowski v. Thompson Yards, 150 Minn. 436, 185 N. W. 504; Baumgartner v. Glesener (Minn.) 214 N. W. 27. See, also, Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 S. Ct. 537, 28 L. Ed. 86, and Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163.

In the case at bar the parties say:

"No warranties have been made * * * by the seller to the buyer unless written hereon."

None were written thereon. We are of the opinion that the parties intended to say that no contractual warranties had been made; that the seller had not spoken or written any warranty in reference to the outfit. There was no other way by which such warranties could have been "made." No action of the parties was necessary to "make" that implied warranty which the law writes into it. We must conclude that the parties did not intend to exclude the implied warranty which could easily have been done in unmistakable terms had they so chosen. Hence there was no error in receiving the evidence to prove the breach thereof. This conclusion is consistent with the Uniform Sales Act (Gen. St. 1923, §§ 8376-8455). Minneapolis Steel Machinery Co. v. Casey Land Agency, supra.

There are some authorities which may seem to be in conflict with our construction of the language in question, but most, if not all, of such cases will be found easily distinguishable.

In Bagley v. General Fire Extinguisher Co. (C. C. A.) 150 F. 284, the language which was construed as excluding an implied warranty was:

"It is explicitly understood and agreed that no obligations * * * shall be binding upon either party."

Note the word "obligations," which is not limited to contractual...