Avalon Painting Co. v. Alert Lumber Co.

• Citation: 234 Cal.App.2d 178,44 Cal.Rptr. 90
• Court: California Court of Appeals
• Decision Date: 03 May 1965
• Parties: AVALON PAINTING COMPANY, Defendant, Cross-Complainant and Appellant, v. ALERT LUMBER COMPANY, Inc., Cross-Defendant and Respondent. Civ. 28438.

Page 90

44 Cal.Rptr. 90

234 Cal.App.2d 178

AVALON PAINTING COMPANY, Defendant, Cross-Complainant and Appellant, v. ALERT LUMBER COMPANY, Inc., Cross-Defendant and Respondent.

Civ. 28438.

District Court of Appeal, Second District, Division 2, California.

May 3, 1965.

Rehearing Denied May 26, 1965.

Hearing Denied June 30, 1965.

Brown & Brown, Howard B. Brown, Los Angeles, for appellant.

Horton & Foote, Joseph K. Horton, Los Angeles, for respondent.

ROTH, Presiding Justice.

This appeal is from a judgment against Avalon Painting Company (appellant) predicated upon an order sustaining a demurrer to the first amended cross-complaint of appellant.

In this action a complaint was filed on January 14, 1963, sounding in breach of contract and breach of warranty by Jerold Homes, Inc. against Synkoloid Company and appellant as named defendants and against a number of fictitious defendants.

The facts giving rise to the complaint by Jerold Homes, Inc. and the cross-complaint as they appear from said pleadings are as follows:

In May of 1961, Synkoloid, one of the defendants in the complaint and one of the cross-defendants in the cross-complaint, in order to induce appellant, a painting contractor, to purchase 'Synkoloid Spraywell Texture Paint', represented orally and in writing to appellant that said product would replace the texture material and coat of sealer customarily used by appellant in its various painting contracts and that said product was of excellent AI quality and would do a better job than their texture material or sealer, theretofore separately used and that said product in fact would do a perfect job. Synkoloid, however, stated to appellant that it could not sell the product directly to it but could and would sell to appellant by and through named retailers, specifically mentioning one of the named cross-defendants, Alert Lumber Company, Inc., respondent herein. Predicated upon said representation, the product in question was purchased by appellant direct from respondent and was used by appellant in approximately 1405 dwellings, homes, stores, industrial establishments and apartment houses, including 126 houses built by Jerold Homes, Inc., the plaintiff.

Some time after May, 1962, appellant discovered that the product was not of the character represented but was in fact inferior and of defective quality and contained defective materials and ingredients so as to cause the surfaces upon which it had been used to become spoiled and discolored, to bleed and to cause spots and fungus, to appear wherever it was used. As a direct result of these defects appellant was compelled to and has removed and alleges it will be compelled to remove the product applied on the surfaces mentioned, as a consequence of which it has suffered the damages for which it prays.

On February 8, 1963, appellant answered the complaint and cross-complained against Synkoloid, Alert, respondent herein, and other named cross-defendants and certain fictitious cross-defendants. The original cross-complaint was in four causes of action. The first was for breach of express and implied warranties made by Synkoloid to appellant. The second realleged all the allegations of the first and continued to allege that respondent knew the purpose for which appellant purchased the product involved '* * * that is, to use in applying a texture and sealer to various establishments and * * * warranted the same to be in all respects fit and proper for such purposes.' The third realleged all the allegations of the first and went on to allege that respondent '* * * warranted that said product was of good quality.' The fourth repeated all the allegations of the first and went on to allege that '* * * 'Synkoloid' negligently, recklessly and carelessly manufactured and made said texture material and product so as to cause it to and it did when used cause the surfaces upon which it had been applied to bleed, to become spoiled, discolored and to cause spots and fungus to appear on said surfaces.' From the foregoing it will be noted that the first and fourth causes of action appear to be directed against Synkoloid alone.

The said cross-complaint in its first cause of action in pertinent part alleged the facts as follows: that (a) Alert (respondent herein) and several others were 'retailers'; (b) they 'were, at all times herein mentioned, acting as agents of and for the cross-defendant Synkoloid"; (c) Synkoloid, in order to induce appellant to purchase the same, made certain express representations concerning the high quality of 'Synkoloid Spraywell Texture Paint' which was to be used by appellant in various painting contracts and subcontracts; (d) appellant 'purchased said product in reliance on said warranties and representations'; (e) Synkoloid stated it could sell by and through its retailers who would act as its agents; (f) the paint so purchased was defective and as a result of such defect appellant has been and will be compelled to remove the paint and re-do the walls upon which it was used; (g) damages resulted to appellant from the costs of repainting the walls and from the loss of future profits. Demurrer to the cross-complaint was sustained with leave to amend.

The allegations of the first cause of action of the amended cross-complaint are identical to those of the original cross-complaint with these differences: (a) the allegation that 'cross-defendant 'retailers' were, at all time herein mentioned, acting as agents of and for the cross-defendant 'Synkoloid" is omitted, and in lieu thereof it is alleged that 'Cross-defendant 'retailers', at all times herein mentioned, were retailers selling the product hereinafter referred to for the cross-defendant 'Synkoloid"; (b) an allegation is added that appellant purchased the paint 'from defendant 'retailers" instead of alleging only that appellant purchased the product in reliance on the representations and warranties of Synkoloid.

Respondent again demurred. Appellant stated it would be unable to allege further facts. The demurrer was then sustained without leave to amend.

The crucial allegation appears to be the one in the first cause of action of appellant's original cross-complaint to the effect that respondent and other cross-defendants are 'retailers', '* * * who would act as cross-defendant's [Synkoloid] agents for the purposes of selling its product to the [appellant].' As pointed out the amended cross-complaint omits all references to agency and alleges specifically that respondent was a retailer selling the products of Synkoloid, and that appellant purchased Synkoloid products from respondent.

Respondent contends that the pleadings clearly show that respondent was in fact an 'agent' of Synkoloid, the manufacturer; that an action for breach of warranty is an action in contract; and that in an action for breach of contract, including breach of warranty, the known agent of a disclosed principal is not personally liable (Hayman v. Shoemake, 203 Cal.App.2d 140, 159, 21 Cal.Rptr. 519; Tevis v. Savage, 130 Cal. 411, 413, 62 P. 611; Marks v. Rucker & Co., 53 Cal.App. 568, 570-571, 200 P. 655).

If the pleadings do in fact establish respondent as an 'agent' of the manufacturer, then the rule of Hayman, supra, is applicable. We feel, however, that the Hayman rule, the soundness of which we do not question, does not reach the facts as disclosed by the pleadings in the case at bench.

The second and third causes of action of appellant's amended cross-complaint, taken alone, state causes of action against respondent. The general rule, of course, is that the amended pleadings completely supersede all prior pleadings and extinguish them for the purposes of demurrer. (Viera v. Viera, 107 Cal.App.2d 179, 180, 236 P.2d 630; Puchta v. Rothman, 99 Cal.App.2d 285, 291, 221 P.2d 744; Foster v. Keating, 120 Cal.App.2d 435, 452, 261 P.2d 529; O'Melia v. Adkins, 73 Cal.App.2d 143, 147, 166 P.2d 298; O'Brien v. O'Brien, 50 Cal.App.2d 658, 660-661, 123 P.2d 877.

Respondent, however, invokes the well-settled exception to the...