Barb v. Wallace

• Decision Date: 11 April 1980
• Docket Number: No. 814,814
• Citation: 412 A.2d 1314,45 Md.App. 271
• Parties: , 28 UCC Rep.Serv. 999 George William BARB et al. v. Robert WALLACE.
• Court: Court of Special Appeals of Maryland

Page 271

45 Md.App. 271

412 A.2d 1314, 28 UCC Rep.Serv. 999

George William BARB et al. v. Robert WALLACE.

No. 814.

Court of Special Appeals of Maryland.

April 11, 1980.

John J. Coyle, Jr., Baltimore, with whom was Gary G. Leasure, Cumberland, on the brief, for appellants.

Robert H. Reinhart, Cumberland, with whom were Walsh, Walsh & Reinhart, Cumberland, on the brief, for appellee.

Argued before LOWE, MELVIN and COUCH, JJ.

COUCH, Judge.

At the age of sixteen, George William Barb purchased a small, used gasoline powered engine for five dollars from Robert Wallace for use in a go-cart. A short while after George returned home he attempted to start the engine, which was mounted on a sturdy base at the time of purchase. Almost immediately upon starting, the engine exploded and caused severe injuries to George's head. George and his father, appellants here, sued appellee, Robert Wallace, in the Circuit Court for Allegany County. Appellee's demurrer to the original declaration was sustained; appellants then filed an amended declaration containing three counts. Count One sounded in tort and claimed that appellee failed to warn George that the engine had an internal defect of which appellee was aware. Count Two alleged breaches of express and implied warranties. Count Three was brought by George's father to recover the expenses incurred as a result of the engine's explosion. Appellee pleaded to the amended declaration, generally denying any responsibility.

Appellee's attorney filed a motion for summary judgment, which was accompanied by the depositions he had taken of George and George's mother. Written memoranda of law were submitted by both sides, but no hearing was held on the motion since none was requested. Following consideration of the pleadings, depositions, and memoranda, the trial court concluded that appellee was entitled to summary judgment on all counts. George and his father appeal the entry of judgment in appellee's favor.

Appellants take issue with the trial court's entry of summary judgment on Count Two, which alleges that appellee breached both an express warranty and an implied warranty of fitness for a particular purpose, and on Count Three, which seeks recovery of medical expenses incurred by George's father. Appellants concede that summary judgment was properly entered with respect to Count One since there was no evidence to support their contention.

George, in his deposition taken by appellee's attorney, described the circumstances attendant to his purchase of the engine and the accident which followed. We shall set forth the relevant excerpts from that deposition:

"Q. At the time that you purchased the motor, did you have any conversation with the Defendant Mr. Wallace about it?

A. Yes.

Q. Do you recall what that conversation was?

A. Yes. I asked him if the engine ran good, and he said he had been using it for uses around the farm, and he said it ran real good.

Q. Did you indicate to him what use you were going to make of it?

A. Yes.

Q. And what was that?

A. A go-cart.

Q. What else can you recall now of any conversation you had with Mr. Wallace about that motor?

A. That was about all we talked about. He told me it ran good. And I told him I was, you know, wanted it for a go-cart. And he said it would work cause the shaft was out of the side of the engine.

Q. You did not try to start it at that time?

A. No. I told him I didn't want to start it. I took his word that it ran good. Because I didn't want to put it in the car hot and run it home.

Q. Can you describe how you start this particular motor?

A. It had a kick starter. And all he told me I had to do was just kick down on it and it would start. And I wanted to shut it off press against the spark plug, the metal cap that come up, and it would shut it off.

Q. Could you have started it right there?

A. At his property?

Q. Yes.

A. Yeah. It had gas and all in it he told me.

Q. Did you in fact install this engine in a go-cart?

A. No, I didn't.

Q. What did you do with it when you took it from his premises?

A. I took it to my house, and took it out of the car and set it on my grandmother's back porch.

Q. When did you first attempt to start it?

A. About twenty minutes after I was home.

Q. On her back porch?

A. Uh huh.

Q. You attempted to start it by depressing it with your foot?

A. Uh huh.

Q. Had you put gasoline in it?

A. No. I didn't have to.

Q. You didn't put anything in it?

A. No. But it was ready to start he said.

Q. You didn't do anything but just put your foot on it and depress the starting lever or kick starter?

A. Press it down. Uh huh.

Q. And what happened when you did that?

A. I heard it start, and then that's all I remember.

Q. What happened to the engine?

A. I have no idea. I guess it blew up. Cause that's all I remember is hearing it start, and then it just that was it."

It is well established that summary judgment procedure under Md.Rule 610 is not a substitute for trial but rather is a determination of whether there are disputed issues of fact that should be tried. See Merchants Mtg. Co. v. Lubow, 275 Md. 208, 339 A.2d 664 (1975), and Impala, Ltd. v. Impala Sales (U.S.A.) Inc., 283 Md. 296, 389 A.2d 887 (1978). Furthermore, it is also well settled that in determining whether a summary judgment should be granted, all facts and inferences drawn from those facts should, at that stage of the proceedings, be viewed in the light most favorable to the party against whom summary judgment is sought. Mazur v. Scavone, 37 Md.App. 695, 378 A.2d 1355 (1977); see also Berkey v. Delia, --- Md. ----, 413 A.2d 170 (1980). Keeping these considerations in mind, we shall examine the allegations in Count Two and the record, particularly George's deposition, to determine whether there was a genuine dispute as to the existence of an express warranty and an implied warranty of fitness for a particular purpose.

Express Warranty

Md.Com. Law Code Ann. (hereinafter U.C.C.), Section 2-313 (1975), provides in pertinent part:

"(1) Express warranties by the seller are created as follows:

(a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise."

The only statement of fact before the court bearing on this issue appears in George's deposition. Appellants claim that appellee's assurances, made prior to the sale, that the engine "ran real good", was ready to start, that he had been using it around the farm, and that it would work for a go-cart since "the shaft was out the side of the engine", viewed in a light most favorable to appellants, reveal that the seller (appellee) made an affirmation of fact to the buyer relating to the goods which became a part of the basis of the bargain.

Appellee's response focuses only upon the following excerpt from George's deposition:

"Q. Do you recall what the conversation was?

A. Yes. I asked him if the engine ran good, and he said he had been using it for uses around the farm, and he said it ran real good."

Appellee contends that this statement is a recounting of appellee's experience with the engine and cannot fairly be regarded as part of the negotiated contract of sale, although at argument appellee conceded that the statement formed the basis of the bargain. According to appellee, the import of appellee's statement was that he had used the engine around his farm and that it functioned properly at that time for the uses to which it was put by appellee. Reliance is placed upon our decision in McCarty v. E. J. Korvette, 28 Md.App. 421, 347 A.2d 253 (1975), for the proposition that appellee's statement does not relate to existing quality, capability, or condition of the object. Language couched in the past tense, in appellee's view, relates to past quality, capability, or condition.

We can view neither McCarty nor George's account of the transaction as narrowly as appellee urges. Judge Davidson for this Court in McCarty, supra at 425, 347 A.2d 253, observed that in White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617 (1913), the Court of Appeals, prior to the adoption of the U.C.C. in Maryland, recognized that language relating to the existing qualities, capabilities, and condition of goods constituted an express warranty. The Court drew a distinction, however, between an express warranty and "(l)anguage promising that the seller would repair goods in the event of a breach of the warranty, (which) . . . did not constitute an express warranty, but rather an executory contractual undertaking to be performed in the future." McCarty, supra, 28 Md.App. at 426, 347 A.2d at 257.

In Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 98 A. 361 (1916), the Court found an express warranty, ¹ rather than an executory promise in the seller's assurance that a truck would perform in a certain way for a given period of time in the future. The Court of Appeals stated that, "The assurance to that effect was not an executory promise, but had reference to an existing quality or capacity, and was hence closely akin to the other representations with which it was joined." Id. at 105, 98 A. at 362. Judge Davidson, following a determination that § 2-313 required no "departure from these basic principles which were applied under both the common law and the Uniform Sales Act", considered the warranty in McCarty and concluded:

"Here the language on the invoice given to the buyer to the effect that 'the tires identified hereon are guaranteed for 36,000 miles . . . against all road hazards, including . . . blow out . . .' constitutes an affirmation that the tires are of such existing quality, capacity and condition as to make them capable of rendering service without blowing out before they have been used for 36,000 miles. This assurance of the serviceability of the tires for a given number of miles, because it is a...