C.I.T. Corp. v. Shogren
| Decision Date | 18 February 1936 |
| Docket Number | 25067. |
| Citation | 55 P.2d 956,176 Okla. 388,1936 OK 160 |
| Parties | C. I. T. CORPORATION v. SHOGREN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 24, 1936.
Syllabus by the Court.
1. Prior oral agreements between parties are merged into and excluded by a subsequent complete written contract between the same parties and dealing with the same subject matter. This rule of merger and exclusion precludes the consideration of a prior express oral warranty made by the seller of personal property as a supplement to a written contract of sale. However, prior oral negotiations, even though they reflect that an express oral warranty was made, may, under proper circumstances, be shown in evidence in support of a plea that the contract was procured by fraud. Such negotiations may also be admissible to show facts and circumstances giving rise to an implied warranty.
2. A contractual provision authorizing the purchaser of personal property to examine and reject the property within a limited time does not exclude an implied warranty covering latent defects not discovered within the specified time.
3. Affirmation of a contract of sale by the purchaser by an agreed modification thereof or the substitution of a new contract in lieu thereof subsequent to the discovery of a defect in the article sold does not prevent such purchaser from taking advantage of remedies or defenses previously available, provided that, at the time of such reaffirmance he believes by reason of promises made by the seller that such defect will thereafter be remedied by the seller, and provided further, the seller has failed to make good such promise to remedy the defect.
4. The verdict of a jury and judgment of a court based thereon obtained by a successful litigant through instructions upon an untenable theory cannot be sustained upon the theory that if the jury had been properly instructed upon another but tenable theory the same result might have been obtained unless the facts are such that the trial court should have directed a verdict on the tenable theory not covered by the instructions.
Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph Judge.
Action in replevin by the C. I. T. Corporation against J. A. Shogren. From a judgment for defendant, plaintiff appeals.
Reversed, with directions to grant a new trial.
F. J. Lucas, of Tulsa, for plaintiff in error.
James P. Melone, of Tulsa, for defendant in error.
This is an action in replevin to recover the possession of a Legonier refrigerator counter, or its value in lieu thereof. It was commenced on December 2, 1932, in the court of common pleas of Tulsa county by the plaintiff C. I. T. Corporation, as assignee of a conditional sales contract covering the above-mentioned personal property. The defendant, J. A. Shogren, was the vendee in the contract referred to. The case was tried to a jury in the trial court on May 19, 1933, and resulted in a verdict and judgment in favor of the defendant. The plaintiff appeals.
The parties, who appear in this court in the order of their appearance before the trial court, will be referred to by their trial court designation.
On the 26th day of January, 1931, the defendant, J. A. Shogren, who was the owner and operator of a grocery and market located in the city of Tulsa, acquired the personal property hereinbefore referred to from the Legonier Refrigerator Company division of the Allied Stores Utility Company. At the time of the acquisition of the property, he executed a conditional sale contract by the terms of which the vendor retained title to the property pending the full payment of the purchase price.
It appears from the contract that the purchase price was $935, of which $100 was paid at the time of the execution of the contract, and the remaining $835 was to be paid in monthly payments of $45 each. In connection with this contract, a promissory note was executed by the defendant for the unpaid balance of the purchase price of the property. In the negotiations leading to the sale of the counter, the vendor was represented by its agent, a Mr. L. A. Bewley. From the evidence of the defendant, it appears that at the time he acquired the refrigerator counter he entertained some doubts as to whether it could be operated in connection with his business without developing a defect known as "sweating." He made particular inquiry concerning this matter of the seller's agent, who assured him that such defect would not develop in the maintenance or operation of this particular counter, and, in fact, orally warranted in behalf of the company that it would be free from such defect. In reliance upon these representations and warranties, the defendant purchased the property and assumed the obligation of paying for the same.
After the counter had been in operation and possession of the defendant for a period of approximately thirty days, the defect developed. Complaint was made to the seller through its agent. The agent assured the defendant that the defect would be remedied. While the purchaser was enjoying a feeling of security by reason of assurances of the agent, negotiations were entered into for the purpose of reducing the monthly payments from $45 to $25. Such reduction in payments was agreed upon, and the change was accomplished by the execution of another conditional sales contract by the defendant together with another promissory note, both of which instruments were, in substance, the same as those first executed, except as to the amount of monthly payments.
The seller failed to carry out the assurances of its agent that the defect would be remedied. After the defendant had paid $571 on the total purchase price, he declined to make any further payments.
In the meantime the note and conditional sales contract had been transferred to the plaintiff in this case, which then commenced this action. The defendant took the position that the plaintiff acquired the contract with full knowledge of the foregoing facts, and that his rights and defenses were the same as though the action had been commenced by the original seller. The jury was instructed on this feature of the case, and its verdict and judgment rendered thereon is presumed to include a finding favorable to the defendant upon this question of fact. The sufficiency of the evidence to support such a finding is not challenged in this appeal. We shall, therefore, in the subsequent portions of this opinion, treat this case as though it were a contest between...
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