Carver v. Denn

• Decision Date: 31 January 1950
• Docket Number: No. 7374,7374
• Citation: 117 Utah 180,214 P.2d 118
• Parties: CARVER, v. DENN.
• Court: Utah Supreme Court

Page 118

214 P.2d 118

117 Utah 180

CARVER, v. DENN.

No. 7374.

Supreme Court of Utah.

Jan. 31, 1950.

Robert B. Porter, Jr., Salt Lake City, Robert B. Porter, Salt Lake City, for appellant.

Dan B. Shields, Salt Lake City, for respondent.

LATIMER, Justice.

This action was brought by William G. Carver, doing business as Carver Sheet Metal Works, against W. T. Denn, doing business as Hubbard-Denn Jewelers, to recover the sum of $870.00 which amount represents the cost of material furnished and labor performed in installing an air cooler in the defendant's place of business. An agreement for the installation was not in dispute but as a defense to the action defendant pleaded an implied warranty that the equipment installed would be suitable for the purpose and that such equipment had proved unsuitable. In the lower court the action was tried before a judge sitting without a jury. He found a breach of the implied warranty, awarded judgment to the defendant and plaintiff appeals. The parties will be referred to as they appeared in the trial below.

The evidence shows that some time in June, 1947, Mr. Dunn, an employee of the defendant, approached one George Maycock, an employee of A. A. Maycock Company, and told him the defendant was interested in having a cooling system installed in his place of business, and suggested that Maycock talk with Mr. Denn about it. Maycock Company handled heating and ventilating equipment, including the Palmer Evaporative Cooler, but did no installation work. Not long after the first conversation, George Maycock went to the defendant's jewelry store to discuss the sale of an air cooler. In connection with the proposed sale Maycock explained to and discussed with defendant the various ways of securing a cooling action, the cost and types of equipment, and the best location for the particular type of cooler; he assured the defendant the equipment would be satisfactory as an inside installation; and, that it would make no more noise than an ordinary electric fan. Maycock was specifically told that defendant wanted a machine which would cool the front end of the store, and if his machine would not do this the defendant would not be interested in a purchase. Several days later, Maycock returned to the defendant's jewelry store with Mr. Goaslind, an employee of the plaintiff. There is some dispute in the record as to whether plaintiff was contacted at the suggestion of defendant or whether Maycock brought him into the store on his own initiative. On this visit to the store Goaslind and Maycock discussed the installation of the equipment, took measurements and planned the installation.

On June 7th, which defendant claims was after the installation work had commenced, plaintiff caused a letter to be delivered to defendant in which it was stated that plaintiff would furnish and install a 7500 H Palmer Evaporative Cooler, with all necessary fittings and grill for the sum of $870.00. This installation was to include electrical and plumbing work. The defendant impliedly accepted the terms and the plaintiff installed the air-cooler on the balcony in the upstairs of the store.

When the air-cooler was first put in use it was noisy, it scattered water over the ceiling in front of the machine, it drew dirt and dust from the alley in back of the store and blew it into the store, it failed to decrease the temperature and it caused a musty odor to be noticeable. The defendant complained to the plaintiff about the unsatisfactory operation of the machine and the plaintiff made several attempts to remedy the situation and make the machine operate more satisfactorily. It was relocated in the office, but it blew the papers off the desks. Subsequently, a new motor was installed and other repair work performed, but the machine was still unsatisfactory. Regardless of the efforts to correct the deficiencies there was not much difference in the temperature of the store when the machine was running and when it was not.

In the spring of 1948 representatives of plaintiff, Maycock Company and defendant discussed the situation. Defendant requested that the machine be taken out since it could not be made to work satisfactorily. The others assured him that the machine could be fixed so that it would operate as it should and other repairs were made, but it still failed to function properly. A thermometer was placed in the store in July and August of 1948 and testimony showed that the recorded temperature in the store with the cooler on was 9, degrees in the front of the store and 94 degrees in back near the cooler. The noise was still present and objectionable, making it difficult to talk with customers. Dust and dirt were still being drawn in from the alley through the conditioner and scattered about the room. The dist and dirt which fell onto the watch repair benches made it difficult to repair watches.

Witnesses for both parties testified that the name 'Palmer Evaporative Cooler' meant nothing to defendant and that he was unfamiliar with air-conditioningmachines. Defendant testified he was under the impression that the Maycock Company was to do the installing and that this was his impression until he received the letter from the plaintiff. He further testified that when Maycock came to the jewelry store with Goaslind defendant assumed that Goaslind was working for Maycock. The defendant complained to both the Maycocks and to the plaintiff regarding the unsatisfactory performance of the air-cooler and offered to make payment when the deficiencies were corrected.

Plaintiff was a party to the written memorandum and demand for payment was made by him for the entire cost of the machine and its installation. No demand was made by the Maycock Company for payment for any of the service or for any part of the equipment, and George Maycock testified that the defendant was not obligated to that company for the machine.

In attempting to deny the existence of a warranty, plaintiff contends that the proper interpretation of the facts requires a finding that this was a purchase of a specified known article, described by its patent or trade name, and hence, the case comes under the provisions of sub-section (4) of Section 81-1-15 U.C.A.1943, which provides:

'In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

The defendant, on the other hand, in seeking to affirm the existence of a warranty, contends that sub-section (1) of the above section should be applied. It provides as follows:

'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he is the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.'

Plaintiff cites several cases to substantiate his contention, including two cases decided by this court: Battle Creek Bread Wrapping Machine Co. v. Paramount Baking Co., 88 Utah 67, 39 P.2d 323, and Landes & Co. v. Fallows, 81 Utah 432, 19 P.2d 389, 391. Neither of these cases is helpful to the plaintiff's case. In Landes & Co. v. Fallows, supra, the conditional sales contract covering the sale of a second-hand harvester contained a provision that no warranties of...