Acme Equipment Corp. v. Montgomery Co-op. Creamery Ass'n

• Decision Date: 04 January 1966
• Citation: 29 Wis.2d 355,138 N.W.2d 729
• Parties: ACME EQUIPMENT CORPORATION, a Wis. corporation, Respondent, v. MONTGOMERY COOPERATIVE CREAMERY ASS'N, a foreign cooperative, Appellant.
• Court: Wisconsin Supreme Court

Page 729

138 N.W.2d 729

29 Wis.2d 355

ACME EQUIPMENT CORPORATION, a Wis. corporation, Respondent, v. MONTGOMERY COOPERATIVE CREAMERY ASS'N, a foreign

cooperative, Appellant.

Supreme Court of Wisconsin.

Jan. 4, 1966.

Montgomery Cooperative Creamery Association appealed.

Doherty, Rumble & Butler, Harold Jordan, St. Paul, Minn., Orr, Isaksen, Werner, Lathrop & Heaney, Leon E. Isaksen, Madison, for appellant.

Callahan, Arnold & Van Metre, E. Clarke Arnold, Columbus, for respondent.

BEILFUSS, Justice.

There are three issues involved on this appeal: (1) existence of an express warranty, (2) breach of the warranty, and (3) right to rescind the contract.

Sec. 121.12, Stats., identical to Uniform Sales Act, sec. 12, defines express warranty:

'Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty.'

The trial court did not make a specific finding concerning the existence of an express warranty. However, the court based its decision upon the ground that there was no breach of warranty proved. It, therefore, necessarily determined that an express warranty resulted out of the sales transaction. In any event, we have no hesitation in concluding as a matter of law that an express warranty existed.

The statute requires that the seller make an affirmation of fact or a promise, as distinguished from opinion or mere sales talk. The statute then requires that the buyer be induced to purchase because of the affirmation of fact or promise.

The written statement of Temkin was, 'To be in good shape and good working order.' It is clear from cases decided under the Uniform Sales Act, sec. 12, that no special wording is necessary to create an express warranty. Distillers Distributing Corp. v. Sherwood Distilling Co. (1950), 4 Cir., 180 F.2d 800; Nichols v. Lea (1950), 216 Ark. 388, 225 S.W.2d 684; Stott v. Johnston (1951), 36 Cal.2d 864, 229 P.2d 348, 28 A.L.R.2d 580; Rudd v. Rogerson (1956), 133 Colo. 506, 297 P.2d 533.

In Saunders v. Cowl (1938), 201 Minn. 574, 277 N.W. 12, an express warranty was found to have been created when a seller selling a six or seven year-old tent stated that it was 'in good condition.'

"'* * * Quality of goods' includes their state or condition.' The word 'good' itself, when used in connection with chattels, refers to their condition, that they are sound, reliable, right, and not depreciated and the like. * * *' Saunders v. Cowl, supra, p. 576, 277 N.W. p. 13.

Similarly, the statement that a piano was 'in good condition' created an express warranty. Schwartz v. Gross (1952), 93 Ohio App. 445, 114 N.E.2d 103.

'* * * When the word 'good' is used to describe the 'quality' or 'condition' of a chattel, it may be found to be an affirmation of fact that the chattel is sound, reliable and right, as opposed to the characterization 'poor condition." Schwartz v. Gross, supra, p. 451, 114 N.E.2d p. 106.

Temkin's statement was clearly an affirmation of fact going to the quality of the goods. Equally clear is the reliance on the statement by Folie and Tuma. They would not close the deal or pay the purchase price until Temkin had written the requested statement on the delivery receipt. In fact they were not satisfied with Temkin's first statement and required him to add to it before they would give him the check. The reliance on the warranty need not be the sole inducement to purchase. 1 Williston, Sales (rev. ed.), pp. 534, 535, sec. 206.

The affirmation of fact and the reliance by Folie and Tuma were sufficient to create an express warranty as a matter of law.

Appellant contends that the trial court erred in finding that appellant failed to prove breach of the warranty. The trial court noted that although Storck found scored cylinder walls, loose packing plands, and the forty year-old age of the machine, Folie conceded that the packing glands and the age would be no real problem and would make no real difference. This makes the scored cylinder walls and valves the vital issue.

Storck testified variously that the machine was not in good shape and was not in good working order, and that the machine would not run. He also testified, mostly on cross examination, that the machine would probably run but probably would not perform its function, and that the defects would impair the efficiency of the compressor only.

The trial court found nothing in the record to define 'in good shape and good working order.' We deem that this phrase is one of common parlance, for which a specific contractual definition was not required. It constituted a sufficient standard for use by the trier of fact in determining whether or not a breach of warranty occurred.

We have already quoted from the opinions of two courts which have considered the definition of 'good' in relation to the condition or quality of goods. In Ward v. Schofferman (1947), 135 N.J.L. 596, 52 A.2d 804, the words 'good operating condition' were a sufficient warranty to present a fact question on breach.

'[I]n good shape and good working order' is a common phrase made up of words of common, well-known meanings. The trier of fact was presented with a sufficient standard from this phrase to determine whether or not a breach occurred.

The trial court placed great weight on the concession of Storck that the machine would function if installed, and that the scoring on the cylinder walls would affect efficiency only. Then, finding no evidence in the record to indicate to what degree efficiency would be impaired, the trial court concluded that no breach of warranty was proved. The machine was not warranted as a new machine and cannot be expected to work...