Appalachian Power Co. v. Tate

• Decision Date: 07 March 1922
• Parties: Appalachian Power Co. v. James D. Tate.
• Court: West Virginia Supreme Court

90 W.Va. 428

Appalachian Power Co.

v.James D. Tate.

Supreme Court of Appeals of West Virginia.

Submitted February 28, 1922.

Decided March 7, 1922.

1. Evidence Where Appliance is Sold by Particular Description in Written Contract, Buyer May Not Prove a Verbal Warranty of Fitness for a Particular Purpose. Where a machine or appliance is sold by a particular description or designation by a contract in writing, the buyer may not prove an express verbal warranty of fitness of such machine or appliance for a particular purpose. (p. 432).

2. Sales There is No Warranty That Article Bought by Particular Description is Fit for any Particular Purpose, Although the Seller Knows the Buyer Intends it for Such Purpose.

Ordinarily there is no implied warranty that a machine or appliance sold by a particular description, is fit for any particular purpose, even though the seller knows at the time of the sale that the buyer intends it for such specific purpose. (p. 432).

3. Same Machine Sold by a Particular Description is Impliedly Warranted to be a Merchantable Article of the Kind Sold.

Where a sale of a machine or appliance is made by a particular description or designation, there is an implied warranty that it will be a merchantable article of the kind sold. (p. 433).

4. Same Buyer is Justified in Rejecting a Machine Sold by Particular Description Where it Will Not Perform the Usual Service of the Ordinary Appliance Described. One who buys a machine or appliance by a particular description or designation, is justified in rejecting the article tendered in satisfaction oi the contract of sale, where it appears that it will not perform the service usually performed by the average or ordinary machine or appliance described in the contract of sale. (p. 434).

Appeal from Circuit Court, Mercer County.

Action by the Appalachian Power Company against James D. Tate to recover a balance claimed upon an account for goods sold and delivered. Judgment for the defendant, plaintiff's bill dismissed, and the plaintiff appeals.

Affirmed.

McClaugherty & Richardson, for appellant. Reynolds & Reynolds, for appellee.

Ritz, Judge:

The plaintiff instituted this suit to recover the balance claimed upon an account for goods sold and delivered by it to the defendant, the jurisdiction in equity being sustained by an attachment sued out upon the ground that the defendant is a non-resident of the State of West Virginia. The right to recover was denied and upon a hearing the Court below found in favor of the defendant and dismissed the plaintiff's bill, and it is to reverse this decree that this appeal is prosecuted.

The only substantial controversy arises over the right of the plaintiff to recover the purchase price of one "Isko Re- frigerating Unit No. 20" amounting to $332.50. It appears that on the 9th day of May, 1919, the defendant gave a written order to the plaintiff for the refrigerating machine above mentioned at the price above indicated, to be shipped by express as soon as possible and to be paid for in thirty days from date of delivery. This written order was accepted in writing by the plaintiff. It will be noted that there is no express warranty that the machine to be furnished would be fit for any particular use or would accomplish any specific purpose. It is shown, however, that at the time this order was given and accepted the plaintiff's agent warranted that the machine would furnish refrigeration for the defendant's refrigerator and would make small cubes of ice for domestic table use. Upon this order the plaintiff had the manufacturer ship a machine to the defendant, but the shipment was not made for nearly three months after the order was given. This delay in shipment is however not involved in the controversy. When the machine arrived it was received from the transportation company by an agent of the plaintiff and taken to defendant's residence where it was placed in a servant's room, without removing the original crating and packing, until the same could be installed. It seems that a part of this machine was intended to rest on the top of the refrigerator and another part consisting of coils and perhaps some other devices was intended to be placed inside the chamber of the refrigerator intended to contain the ice when the refrigerator was used in the ordinary way, and to connect the parts so placed it was necessary to bore holes through the top of the refrigerator through which pipes extended joining the part on the outside with the part on the inside of the refrigerator. The mechanical device was operated by electricity and to secure the current for this purpose it was necessary for the apparatus to be connected with the electric wires used by defendant for lighting his residence. Upon the delivery of the machine at his residence the defendant inquired of plaintiff's agent who made the delivery, who was the same agent who sold the machine to him, whom he could get to make these connections and install the machine, and this agent advised him that a certain plumber and a certain electrician could properly do the work. Accompanying the machine were diagrams and directions for the proper installation. On the day after the machine was delivered at his residence, defendant procured the plumber and the electrician recommended by plaintiff's agent to come to his residence for the purpose of installing the machine. Upon opening the door of the room in which the machine had been stored over night, a very strong odor of gas was detected which had evidently escaped from the machine. The crating and packing were removed and the machine installed in exact accordance with the directions, but it failed to produce any substantial refrigeration or to make any ice as it was contemplated that it would. Defendant thereupon notified the plaintiff's agent of the failure of the device to function, and this agent made an examination of it. He made no criticism of the manner in which the work of installation had been done, but discovered some valves which he thought were not properly adjusted. After adjusting these valves another attempt was made to operate the machine, but without success. The plaintiff's agent then concluded that the failure upon the part of the device to operate was occasioned by an insufficient supply of gas and he undertook to secure an additional supply. He was unable to get the gas upon his order and proposed that he would substitute a machine which he was using for demonstration purposes. The defendant acceded to this suggestion and the substitution was made but with no better results than had been obtained with the first machine. After repeated attempts to get the result contemplated, the defendant refused to accept the device and so notified plaintiff's agent. Some time afterward a representative of the manufacturer appeared upon the scene and examined the machcine at defendant's residence where it still remained. According to his...