Clarizo v. Spada Distributing Co.

• Decision Date: 31 July 1962
• Parties: Vito CLARIZO, Respondent, v. SPADA DISTRIBUTING CO., Inc., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 689

373 P.2d 689

231 Or. 516

Vito CLARIZO, Respondent, v. SPADA DISTRIBUTING CO., Inc., a corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 9, 1962.

Decided July 31, 1962.

Dirk D. Snel, Portland, argued the cause for appellant. With him on the brief was Howard I. Bobbitt, Portland.

No appearance for respondent.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and LUSK, JJ.

McALLISTER, Chief Justice.

The plaintiff, Vito Clarizo, brought this action to recover from the defendant, Spada Distributing Co., Inc., damages on account of the alleged breach of an implied warranty of quality of three carloads of vegetables purchased by plaintiff from defendant.

The plaintiff is a produce dealer in Seattle, and the defendant is engaged in the same business with its office in Portland. In the fall of 1958 the plaintiff purchased from the defendant two carloads of onions and a carload of potatoes. The plaintiff alleged that the vegetables in each carload were in part unmerchantable and that he was damaged thereby. The defendant filed a general denial and a counterclaim for the unpaid portion of the purchase price. The jury found for the plaintiff in the sum of $807.73, and from the judgment based on said verdict defendant has appealed.

At the outset it is necessary to consider certain aggravating defects in appellant's brief--aggravating because they have caused this court to waste much valuable time in determining their consequences, and because they could have been avoided with slight care. They are typified by Assignment of Error No. 1, which reads as follows:

'Assignment of Error No. 1

'The Court erred in denying defendant's motion notwithstanding the verdict and defendant's motion for a new trial.

'Paragraph B of the motion for judgment notwithstanding the verdict and Paragraph I(1) of the motion for new trial were based on the grounds that defendant's motion for involuntary non-suit, presented at the close of plaintiff's case-in-chief, should have been granted:

"Mr. BOBBITT: I would like to move in behalf of the defendant for an involuntary nonsuit at the present time on the count we have and for the following reasons that on the first count or the first agreement on the No. 1 onions, they were purchased f. o. b. at Brooks. They were delivered to Brooks at that time and therefore they took title to them at that time. Anything subsequent to that time as far as the condition of the onions were the responsibility of the buyers. It's their particular, well, let's say it's their property. If it deteriorates that's their particular problem.

"Second point in that there has never been any indication of a notice of breach of warranty or claim for damages on that particular point; now, he apparently is trying to raise the question of breach of warranty and under our Oregon law----

"THE COURT: (Interposing) Notice under the Statute, notice that has to be given. I know what you mean.

"MR. BOBBITT: And in addition to that, the notice has to be not merely that they are defective but that there is going to be a claim made.

"THE COURT: I am familiar with that. * * *".

In the first paragraph of the foregoing assignment the appellant contends that the court erred (1) in denying his motion for a judgment notwithstanding the verdict, and (2) in denying his motion for a new trial. An examination of the second paragraph of the assignment discloses that the appellant is in reality complaining because the court denied his motion for nonsuit, which is thereafter set out haec verba.

If a motion for judgment notwithstanding the verdict is based on the ground that a motion for a directed verdict should have been granted, it is permissible to assign as error the denial of the motion for judgment n. o. v. Rules of Procedure, Appendix B, Illustration 3. However, nothing is gained thereby and the better practice is to eschew the circuitous approach and to state the basic issue directly by assigning as error the denial of the motion for a directed verdict. In either case the motion for a directed verdict must be set out haec verba 'so that we may be enabled by a reading of the brief to determine whether the points argued here were presented to the trial judge as grounds of such motion.' McCormick v. Williams, Jr., 199 Or. 66, 69, 255 P.2d 1071, 1072.

However, the denial of a motion for a nonsuit is not a ground for judgment n. o. v., and consequently there was no reason in this case for the assignment of error to refer to the motion for judgment n. o. v. In fact the motion for judgment n. o. v. was not based on any of the grounds specified in ORS 18.140 and deserved no consideration either in the court below or in this court.

There was also no reason in this case for the assignment of error to refer to the motion for a new trial. Ordinarily, the denial of a motion for a new trial may not be assigned as error. The most recent statement of the rule is contained in Wills v. Petros, 225 Or. 122, 134, 357 P.2d 394, 400 (1960), as follows:

'It has been repeatedly held by this court that a denial of a motion for a new trial based upon alleged errors committed on the trial, of which the appellant had knowledge at the time, may not be assigned as error on appeal. Benson v. Birch, 1932, 139 Or. 459, 466-467, 10 P.2d 1050; Shearer v. Lantz, supra (210 Or. at page 633, 312 P.2d at page 582); Sherman v. Bankus, 1959, 218 Or. 271, 274, 344 P.2d 771.'

Alleged errors occurring on the trial and known to the appellant at the time must be assigned as error directly without reference to the motion for new trial.

The limited circumstances under which the denial of a motion for a new trial may be assigned as error are set out in Benson v. Birch, 139 Or. 459, 467, 10 P.2d 1050, 1053 (1932), as follows:

'* * * Where a motion for a new trial is based upon the misconduct of the jury which did not come to the knowledge of the party making the motion for a new trial until after the verdict had been returned, or where there has been newly discovered evidence which was not known at the time of the trial and the matter has been presented to the trial court by a motion for a new trial, in proper cases where the overruling of the motion was an abuse of discretion, this court has always reserved the right to consider and pass upon such ruling upon appeal. * * *'

Although defendant's Assignment of Error No. 1 has been prepared in violation of the letter of our rules, there is evident an attempt to comply with the spirit thereof. Our Rule 19 ¹ provides that the arrangement and wording of assignments of error shall conform to the illustrations in Appendix B. Turning to the appendix we find that one who wishes to assign as error the denial of a motion for nonsuit should do so as follows:

'Illustration 2

'The court erred in denying (sustaining) the motion for nonsuit or directed verdict: Set out motion haec verba, * * *.'

The critical requirement is that the motion for nonsuit be set out haec verba.

The mistake made by appellant was to approach his subject by a circuitous route instead of by stating simply that the court erred in denying the defendant's motion for a nonsuit. However, the essential requirement of the rule--that the motion for a nonsuit be set out in full--has been complied with. Since the appellant has complied with the spirit of our rule we have concluded that he should not be penalized because the introductory portion of the assignment contains an unnecessary reference to the motion for a new trial and the motion for judgment n. o. v. ²

Since all the assignments of error are set out in similar fashion, we have considered them all on their merits.

In the case at bar plaintiff accepted the goods and the case turns on whether there was evidence from which the jury could find that plaintiff within a reasonable time gave notice to defendant of the alleged breach of warranty. ORS 75.490 ³ provides that in the absence of such notice 'the seller shall not be liable' for such breach.

This court held in Maxwell Co. v. So. Ore. Gas Corp., 158 Or. 168, 175, 74 P.2d 594, 597, 75 P.2d 9, 114 A.L.R. 697 (1938), that 'the requirement of notice, to be given by the vendee charging breach of warranty, is imposed as a condition precedent to the right to recover, and the giving of notice must be pleaded and proved by the party seeking to recover for such breach.' Accord, Israel v. Miller, 214 Or. 368, 375, 328 P.2d 749 (1958).

Plaintiff did not plead, in either his original or amended complaint, that notice of the alleged breach of warranty was given to defendant. However, the trial court permitted plaintiff to cure this defect in his pleading by an amendment to conform to the proof, made by interlineation after both parties had rested. The allowance of that amendment is assigned as error, but for the reasons hereinafter set forth this assignment lacks merit.

At the close of plaintiff's case defendant moved for a nonsuit on the ground, among others, that plaintiff had failed to prove the giving of notice of breach of warranty as required by ORS 75.490. Since the defendant did not rest upon its motion for nonsuit we must consider all of the evidence, including that offered by defendant. The denial of the nonsuit by the trial court will not be reversed if the record as a whole contains sufficient evidence to take the case to the jury. Gum, Adm. v. Wooge, 211 Or. 149, 155, 315 P.2d 119 (1957); Johnson v. Underwood, 102 Or. 680, 688, 203 P. 879 (1922); Cornely v. Campbell, 95 Or. 345, 365, 186 P. 563, 187 P. 1103 (1920).

This court has construed ORS 75.490 to require that the buyer must notify the seller not only of the breach of warranty but also that he intends to claim damages for such breach. Howard-Cooper Corp. v. Umpqua Co., 148 Or. 582, 585, 36 P.2d 590 (1934); Western Feed Co. v. Heidloff, 74 Or.Adv.Sh. 449, 466, 370 P.2d 612 (March 28, 1962). Other courts have adopted a similar construction....