Allis-Chalmers Mfg. Co. v. Hawhee

• Decision Date: 25 June 1940
• Docket Number: Case Number: 29448
• Citation: 187 Okla. 670,105 P.2d 410,1940 OK 323
• Parties: ALLIS-CHALMERS MFG. CO. v. HAWHEE
• Court: Oklahoma Supreme Court

1940 OK 323

105 P.2d 410

187 Okla. 670

ALLIS-CHALMERS MFG. CO. v. HAWHEE

Case Number: 29448

Supreme Court of Oklahoma

Decided: June 25, 1940

Syllabus

¶0 1. SALES-- Rule of implied warranties inapplicable where contract of sale of farm machinery excluded such warranties.

Where contract of sale of farm machinery stated that machinery was sold with warranty to repair "and no other," and that "this warranty to repair is the only warranty, either express, implied or statutory, upon which the undersigned purchases said machinery," the rule of implied warranties did not apply, since parties may contract against implied warranties.

2. NEW TRIAL--Vacation of order overruling defendant's motion for new trial after verdict correctly directed for plaintiff was error on pure and unmixed question of law.

Where trial judge correctly directed verdict for plaintiff in first instance, and would have erred had he done otherwise, and then correctly overruled defendant's motion for new trial, it was error to vacate latter order and grant new trial, since same was an error on a pure and unmixed question of law.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action on note and to foreclose chattel mortgage, by Allis-Chalmers Mfg. Company against E. R. Hawhee. Plaintiff appeals from an order granting defendant a new trial, after directing verdict for plaintiff and overruling defendant's motion for new trial. Reversed and remanded, with directions.

W. F. Schulte, of Ada, for plaintiff in error.

J. L. Emerick, of Ada, and E. F. Lester, of Oklahoma City, for defendant in error.

DANNER, J.

¶1 Pursuant to a written contract a hardware company sold the defendant a combine, which is a threshing machine with a harvesting mechanism at the side. The defendant signed a note and chattel mortgage as payment and security. The note and chattel mortgage were assigned to the plaintiff, the manufacturer of the machine. This is an action to recover a money judgment on the note and to foreclose the chattel mortgage.

¶2 By cross-petition the defendant asserted a breach of implied warranty of fitness in the machine, and resultant damage to him, and sought cancellation of the note and mortgage, plus damages incurred by reason of the alleged breach of implied warranty of fitness. Plaintiff's reply set forth the written agreement under which the machine had been purchased, in which there was a stipulation expressly excluding all warranties, except, one therein named, which was a warranty to repair.

¶3 The trial judge directed a verdict for the plaintiff, entered a judgment thereon, and subsequently overruled defendant's motion for new trial. Thereafter the defendant filed a motion to vacate the order overruling his motion for new trial, and the court sustained said motion, vacating the order overruling the motion for new trial and sustaining said motion for new trial.

¶4 The plaintiff appeals, contending that under the law and the evidence the court erred in entering the order last mentioned above. The question resolves itself into an inquiry whether, according to the law governing the case, the evidence was sufficient to justify submitting the issues to the jury. If it was, then the judgment appealed from is correct. If it was not, then the trial judge was correct the first time, and we shall have to determine whether, under those circumstances, he erred in granting a new trial.

¶5 The cross-petition was based solely upon an alleged breach of implied warranty of fitness. It did not allege fraud in the inducement to execution of the contract. Nor did the evidence anywhere touch upon any matter which could be said to constitute fraud in the inducement. The sole contention by the defendant in this respect is that there was an implied warranty of fitness (1) coexistent with the contract as a matter of law, and (2) that the oral representations of an agent prior to the sale, plus certain statements in two of plaintiff's catalogs, constituted said warranties.

¶6 We may eliminate the catalog question without much difficulty. Assuming for purposes of reasoning that the statements therein made constituted anything more than the ordinary commercial "puffing," the fact nevertheless remains that the written agreement was not consummated by means of the catalog entering thereinto or playing any role as a part thereof. This was not an order from catalog, in the sense that the catalog constituted an offer and the order constituted an acceptance, in which case we might have a different problem. It cannot correctly be said that the catalog, or the statements therein, constituted any part of the contract in the present case. Nor was there any evidence whatsoever of any representations or inducements made to the defendant in order to get him to sign the contract.

¶7 The oral representations, if any, which may have been made to defendant, preceding or accompanying the execution of the instrument, and the oral agreement, if any, were superseded by the contract in writing, and could not be used for the purpose of varying the written instrument. Section 9456, O. S. 1931, 15 Okla. St. Ann. 137.

¶8 Next we consider the question of implied warranty in the light of the provisions of the contract itself, and the law as related thereto. The contract under which defendant purchased the machine, and the execution of which was admitted by defendant, contained the following:

"WARRANTY

"The said machinery is sold by dealer with the following warranty, AND NO OTHER: ALLIS -CHALMERS MANUFACTURING COMPANY warrants that it will repair f.o.b. its factory, or furnish without charge f.o.b. its factory, a similar part to replace any material in its machinery which within one year after the date of sale by the Dealer is proved to the satisfaction of the Company to have been defective at the time it was sold, provided that all parts claimed defective shall be returned, properly identified, to the Company's branch house having jurisdiction over the Dealer's territory, charges prepaid. * * * THIS WARRANTY TO REPAIR IS THE ONLY WARRANTY EITHER EXPRESS IMPLIED OR STATUTORY, UPON WHICH THE UNDERSIGNED PURCHASES SAID MACHINERY; the company's liability in connection with this transaction is expressly limited to the repair or replacement of defective parts, all other damages and warranties, statutory or otherwise, being

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