Battle Creek Bread Wrapping Mach. Co. v. Paramount Baking Co

• Decision Date: 31 December 1934
• Docket Number: 5340
• Citation: 39 P.2d 323,88 Utah 67
• Court: Utah Supreme Court
• Parties: BATTLE CREEK BREAD WRAPPING MACH. CO. v. PARAMOUNT BAKING CO

39 P.2d 323

88 Utah 67

BATTLE CREEK BREAD WRAPPING MACH. CO. v. PARAMOUNT BAKING CO

No. 5340

Supreme Court of Utah

December 31, 1934

Petition for rehearing denied, September 27, 1935.

Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.

Action in replevin by the Battle Creek Bread Wrapping Machine Company against the Paramount Baking Company. From a judgment for plaintiff, defendant appeals.

REVERSED AND REMANDED, with directions.

Allen T. Sanford, of Salt Lake City, for appellant.

John D Rice, of Salt Lake City, for respondent.

PRATT District Judge. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur. MOFFAT, J., being disqualified, did not participate.

OPINION

PRATT, District Judge.

Upon a title retaining contract, the plaintiff machine company sold and delivered to the defendant baking company a bread-wrapping machine and a bread-slicing machine. The machines are independent of each other in operation. On the face of the contract they are listed as follows:

One model Duplex Wrapping Machine

$ 4,000.00

One model Extra Intake

250.00

One model Simplex Slicer (rebuilt)

1,950.00

Total

$ 6,200.00

Following this total appear these words:

Less allowance--for Model E

$ 600.00

Total

$ 5,600.00

The terms of payment are $ 1,400 cash on installation; and $ 4,200 plus 6 per cent interest in twelve equal monthly installments represented by notes. The extra intake was returned and credit given therefor. It is not involved in this case.

The wrapping machine was replaced by another of the same kind. There is no controversy between the parties as to the amount paid upon the contract nor as to the amount remaining unpaid.

The defendant paid a sum in excess of the price of the slicing machine, then refused to pay more on the ground that the wrapping machine would not properly wrap the loaves of bread. Treating the contract as divisible, it notified the plaintiff that it rescinded as to the wrapping machine demanded the return of payments in excess of the price of the slicing machine, and stated that it held the wrapping machine subject to plaintiff's order upon return of the excess payments.

The plaintiff, on the other hand, claimed that the wrapping machine was not defective and would operate under proper management and cleaning; contended that defendant had breached its contract by default in payments; and, treating the contract as indivisible, instituted an action in replevin for both machines. Upon a bond plaintiff obtained possession of both machines; upon a redelivery bond defendant recovered possession of the slicing machine. For the purposes of the bonds, the two machines were valued at $ 4,500 and the slicing machine alone was valued at $ 1,500.

The lower court decided in favor of the plaintiff, and directed a return of both machines, or, if that were impossible, a judgment in the sum of $ 4,500 as their value. Defendant appeals.

In view of the possession of the wrapping machine by the plaintiff, its value was an immaterial matter; and, if the lower court were right in finding for the plaintiff, the judgment should have been merely for the return of the wrapping machine without regard to its value, and a judgment for the return of the slicing machine or its value, if not returned. General Motors Acceptance Corporation v. Lund, 60 Utah 247, 208 P. 502.

Considerable testimony was offered in support of defendant's contention that the wrapping machine was defective. Upon objection of plaintiff, the lower court rules out some of the evidence pertaining to the breaking of parts, the number of defective wraps--cripples as they were called--the action of the machine the last night, and similar testimony. These rulings we believe were erroneous. The lower court was apparently of the opinion that they were the result of an improper adjustment of the machine by defendant's employees. We doubt seriously that such evidence was so limited in its probative value. The defendant should have been permitted to submit such testimony on the theory, that it tended to show that frequent breaks, improper wrapping, and overheating defeated the very purpose of the machine, to wit, a rapid disposal of loaves of bread--some 2,000 or more per hour.

Was the contract divisible? We think it was. The machines were independent of each other in operation. The slicing machine could be used with any wrapping machine or with hand wrapping; the wrapping machine could be used with either sliced or nonsliced bread. In the contract there is a guaranty that the machine will wrap uniform loaves within its range and capacity. This clearly refers to the wrapping machine and not the slicing machine. There are many elements that enter into the determination of whether or not a contract is divisible, but, so far as the machines in this case are concerned, the principal element is that of unity: Does one depend upon the other to function? If two parts of one machine, the contract is not severable; if independent of each other, that is, two separate machines, the contract is severable. 4 A. L. R. 1442, note.

Now as to warranties: Defendant claims an implied warranty of fitness for its purposes. Plaintiff denies such a warranty; contends that it was the purchase of a specified known patented article; and that it was purchased after seeing it in operation. It should be kept in mind that the machine in controversy is the replacement, not the one seen in action by defendant's representative.

The fact that an article has a trade-name does not negative an implied warranty of fitness for a particular purpose, where it is purchased, not by name, but for a particular purpose and supplied for that purpose. 55 C. J. 757. In the present contract the machine was ordered by the name of "Duplex Wrapping Machine." Had the contract remained silent as to warranties, there would have been some justification for the conclusion that it was a purchase of a specified known article, but the contract contains this clause: "Standard models are guaranteed to wrap uniform loaves or packages within range and capacity for which machine is designed, provided machine is kept in proper adjustment, operated with competent help, and not speeded beyond recommendations of vendor."

The parties apparently recognized that the use of the trade-name of the machine was purely a matter of convenience in designation. These facts, considered along with the fact that the replacement arose out of complaints of defectiveness in the first machine, are rather substantial evidence of the fact that no reliance was placed upon the name of the article, but rather that the parties were concerned with its fitness to accomplish its purpose.

The contract contains another warranty: A guaranty of replacements of parts defective in workmanship or material. Plaintiff contends such express warranty excludes an implied warranty of fitness. Such conclusion does not necessarily follow. The two are not inconsistent. It cannot be said that by expressly agreeing to one it was contemplated that the other was not to apply. In this particular contract there is unquestionable evidence that a warranty of fitness was not excluded. The first machine is expressly warranted to wrap loaves of bread. If the express warranty of parts applies to the substituted machine, then of necessity the express warranty of fitness applies to the substituted machine.

However, we are of the opinion that there was an implied warranty of fitness as to the substituted machine. It is hard to believe otherwise when replacement...