Budrow v. Wheatcraft

• Decision Date: 27 January 1953
• Citation: 115 Cal.App.2d 517,252 P.2d 637
• Court: California Court of Appeals Court of Appeals
• Parties: BUDROW et al. v. WHEATCRAFT et al. Civ. 15116.

Page 637

252 P.2d 637

115 Cal.App.2d 517

BUDROW et al. v. WHEATCRAFT et al.

Civ. 15116.

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

Jan. 27, 1953.

Edward E. Craig, Berkeley, and H. J. Rodriguez, Oakland, for appellants.

Brown, Rosson & Berry, Oakland, for respondents.

GOODELL, Acting Presiding Justice.

The plaintiffs filed a complaint in four counts in an action for breach of warranty. An answer was filed and when the case came on for trial the court granted defendants' oral motion for judgment on the pleadings as to the second and third counts and proceeded to trial without a jury on the first and fourth counts. At the conclusion of plaintiff's case a motion for nonsuit was granted (as to those remaining counts) and a minute order was entered reciting all the proceedings. A motion for new trial was denied and this appeal was taken on behalf of all three plaintiffs.

The first count alleged that on November 19, 1948 defendants sold to plaintiff S. J. Budrow a 1941 Ford station wagon and 'expressly and impliedly warranted to the plaintiff S. J. Budrow, that the said automobile was fit for the purpose for which it was sold, to-wit: to drive as a vehicle upon the public highways.' It alleged a breach of that warranty in that the car, while being driven by Budrow several days after the sale, turned over because its brakes locked, and that he was injured in the accident.

The second count, based on the same warranty, was for damages arising from injuries sustained by plaintiff Eula Budrow, wife of S. J. Budrow, while she was riding in the car on the same occasion.

The third count, based on the same warranty, was for damages arising from injuries sustained by plaintiff Frenell Johnson while a passenger on the same occasion.

The fourth count, based on the same warranty, alleged that plaintiff S. J. Budrow had a $1000 equity in the car and that after the accident it was repossessed by defendants, resulting in the loss of his $1000 equity.

The appeal is divisible into two parts, as to both substantive and procedural law.

The case of plaintiff S. J. Budrow on the first and fourth counts.

The nonsuit was granted for failure to prove any warranty. Plaintiff introduced in evidence a printed conditional sale contract which provided that the sale of the car was made 'in its present condition', also that 'This agreement constitutes the entire contract and no waivers or modification shall be valid unless written upon or attached to this contract, and said car is accepted without any express or implied warranties, agreements, representations, promises or statements unless expressly set forth in this contract at the time of purchase.' Attached to the agreement was a purchase order reading: 'No salesman's verbal agreement is binding on the Company; all terms and conditions of this sale are expressed in this agreement. We do not guarantee the mileage or model * * * I * * * agree to take the above car AS IS * * *.' (The emphasis is in the writing itself).

Plaintiff S. J. Budrow testified that after taking possession of the car he filled it up with gas 'and started home and the car stopped; it wouldn't run;' that Wheatcraft's son then 'shoved me back to the filling station. * * * And the car remained there until the next morning. * * * And the next morning I went back to Mr. Wheatcraft. * * * He said, 'It's only the foot throttle wrong'. So he say he put a new foot throttle on it. So I pick up the car after that, and went home, and carried the car home, and the brake would lock on me. And I carried it back to him. I said, 'The brake locks on this car. It don't work'. He said, 'I'll have it * * * fixed right'. So he put it in the garage'. Defendants lent him a car temporarily and the next day they notified him to pick up the station wagon which he did. That evening he drove it into Oakland (from Richmond or Stege) and it did not then work well. Early the following morning they left for Dos Palos, where plaintiff S. J. Budrow was employed, and on the way the brakes locked and the mishap occurred, injuring the three plaintiffs. After the accident an officer took the station wagon to a Los Banos garage and left it. Shortly thereafter plaintiff S. J. Budrow mailed the contract and other papers to defendants thereby apparently abandoning the car. Defendants later repossessed it.

The plaintiff was asked: 'Now, Mr. Budrow, going back to the time you bought the automobile from Mr. Wheatcraft, did you have any conversation with Mr. Wheatcraft about the condition of the automobile? Did you talk with him about the car? * * * Mr. Berry: I object to oral remarks, or conversations alleged to have been had as part of the transaction, on the ground that they violate the parol evidence rule. * * * Mr. Craig: I especially call attention to the fact that the car was sold under that written contract, on an 'as is' basis. The purchase order expressly recites that car is sold as is. The Court: Yes. And to show any implied warranty of any kind would be in contravention to the express terms of that contract--violation of the parol rule.

'Mr. Berry: I submit that that would be so, Your Honor. * * * The Court: So we have to keep to the express terms of the contract, I'm afraid. Objection sustained. Proceed, please.'

That these conversations were after the sale had been consummated and possession transferred to the buyer appears from appellants' statement of the issue on appeal as follows: 'Is parol evidence admissible when a cause of action is based on warranty and such evidence is essential to establish warranty where there are subsequent oral agreements between the parties?'

Appellants concede that 'It is a general principle of law that where there is a written integrated contract of sale, parol evidence is inadmissible to show an express warranty since it would amount to an alteration of the terms of the contract; since the contract of sale was on an 'as is' basis it would negate any implied warranty, and in addition there is no implied warranty on second-hand cars in California.' They nevertheless go on to argue that 'The exception to the parol evidence rule is a subsequent oral agreement between the parties in which parol evidence is admissible. This is distinguished from prior or contemporaneous agreements which seek to vary or contradict an integrated contract of sale. Therefore, when the defendants and Mr. Budrow entered into a subsequent oral agreement in which the defendants agreed to see that the car was in A-1 shape, and undertook such repairs, there was an express warranty separate and apart from the initial contract of sale.'

It thus appears that appellants' reliance is placed squarely on a warranty subsequent to the sale.

Respondents answer that there would necessarily have to be a new or fresh consideration to support any such new promise or warranty. In support of that contention they cite William A. Davis Co. v. Bertrand Seed Co., 94 Cal.App. 281, 288, 271 P. 123, 126, wherein this court said: 'But it is respondent's contention that after the receipt and acceptance of the goods and the payment of the price the defendant made certain written statements in its correspondence with the plaintiff which constituted a warranty. But in the first place each and every one of those statements relied upon was contained in a letter, which contained also the printed disclaimer of warranty and there was evidently no intent expressed to give a warranty, and, furthermore, there was no consideration received or accepted which would sustain any new or additional warranty for goods already sold and delivered. In fact, as stated in 1 Williston on Sales (2d Ed.) paragraph 211: 'If the seller's liability on a warranty is based upon an agreement to contract, consideration is essential * * * still more clearly if no representation of warranty was made at the time of the sale, a subsequent representation or agreement to warrant will be of no legal effect unless new consideration is given to it'--citing many cases.' (Emphasis added.)

No attempt was made by offer of proof, or otherwise, to show that there was any consideration for the subsequent promise relied on. We are mindful that this case was disposed of by nonsuit, but there can be no possible presumption of consideration, § 1963, subd. 39, Code Civ.Proc., arising from a written contract, since the only writings in evidence disclaim warranties of any kind. The result is that appellants must rely solely on a naked, gratuitous promise based on no present consideration. The Davis case (wherein a hearing was denied)...