Daniels v. Truck & Equipment Corp.

• Decision Date: 30 November 1964
• Citation: 205 Va. 579,139 S.E.2d 31
• Court: Virginia Supreme Court
• Parties: Elvin David DANIELS v. TRUCK & EQUIPMENT CORPORATION et al.

Page 31

139 S.E.2d 31

205 Va. 579

Elvin David DANIELS v. TRUCK & EQUIPMENT CORPORATION et al.

Supreme Court of Appeals of Virginia.

Nov. 30, 1964.

W. G. Burnette, Lynchburg (J. Benson Hoge, Lynchburg, on brief), for plaintiff in error.

James A. Harper, Jr., Richmond (Richard H. Barrick, Charlottesville, Hunton, Williams, Gay, Powell & Gibson, Richmond, Wingfield & Barrick, Charlottesville, on brief), for defendants in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

SNEAD, Justice.

On October 13, 1961, Elvin David Daniels, plaintiff, instituted an action at law against Truck & Equipment Corporation and Mack Trucks, Inc., defendants. Daniels sought to recover damages in the sum of $100,000, which he claimed resulted from the purchase of a Mack tractor. The jury returned a verdict for $299.19 in his favor against both defendants. Upon motion of defendants, the trial court set aside the verdict as being contrary to the law and the evidence and entered summary judgment for defendants. We granted plaintiff a writ of error.

A number of pleadings were filed and hearings had before the trial of the case actually began. Besides the original motion for judgment, there were four amended motions filed by leave of court. The original motion alleged that defendants had breached an express warranty they had given on the tractor and had also wrongfully repossessed the vehicle. The defendants demurred to it on the grounds that there was a misjoinder of causes of action and the demurrer was sustained for that reason. The demurrer to the first amended motion was sustained because a cause of action had not been stated. Likewise, defendants' demurrer to the second amended motion was sustained on account of failure to state a cause of action. The occurrences relating to the entry of the order sustaining the demurrer to the second motion will be discussed in detail infra.

Thereafter, a third amended motion was It was demurred to on the grounds, among othter things, that there was a misjoinder of causes of action. The record does not show whether or not the court ruled on this demurrer. However, subsequently a fourth amended motion was filed, to which defendants also demurred on similar grounds stated above. The court overruled this demurrer and directed that defendants file their responsive pleadings, which they did within the time specified by the court. A trial was had on April 17, 1963.

The trial was limited to the issue of breach of express warranty and damages resulting therefrom. A tort action for the alleged unlawful repossession of the tractor is pending in the Circuit Court of Albemarle County. It was agreed by the litigants to forego trial of the issue until the present case was decided.

On September 30, 1959, plaintiff purchased from defendant Truck & Equipment Corporation (sometimes hereinafter referred to as the company) a new Mack diesel tractor under terms and conditions of a written conditional sales agreement. On the same day the contract was assigned to defendant Mack Trucks, Inc. and plaintiff executed a receipt of notice of the assignment and agreed to make all payments provided for therein to the assignee.

The contract provided, among other things, that plaintiff would make the specified monthly payments; that time was of the essence; that if plaintiff failed to pay any installments when due 'the full amount of the Time Balance remaining unpaid shall become immediately due and payable', and that upon default the vendor could take immediate possession of the tractor 'without notice or demand.' It further provided that the vendor made no warranties as to the tractor, express or implied, except the manufacturer's standard vehicle warranty, incorporated by reference; that the contract embodied the entire agreement between the parties; that no amendment should be binding on the vendor unless in writing and signed by its authorized representative, and that any provision of the agreement prohibited by law would be ineffective but would not invalidate the remaining provisions.

Under the express warranty referred to above, Truck & Equipment Corporation warranted the tractor sold to plaintiff to be free from defects in material and workmanship, under normal use and service. The obligation under this warranty was limited as follows: (1) All defective parts returned to vendor within 90 days after date of delivery and not in excess of 4,000 miles of operation would be replaced without cost to plaintiff. (2) All parts of the diesel engine found defective and returned to vendor within 90 days after date of delivery and not in excess of 25,000 miles of operation would be replaced or repaired with no cost to plaintiff. (3) All diesel engine parts found to be defective and returned to vendor within one year after date of delivery and not in excess of 100,000 miles of operation should be replaced or repaired at a prorated cost to plaintiff which '(1) the actual mileage of the vehicle bears to 100,000 miles or (2) the number of months since date of delivery to the original purchaser bears to one year--whichever charge shall be greater.'

At the time the tractor was first delivered to plaintiff it did not meet the specifications in that it had a single reduction rear end instead of a dual reduction rear end. The change was made and plaintiff accepted the vehicle. On October 3, 1959, plaintiff began 'hauling and pulling freight' with the tractor for a concern. He operated out of Hagerstown, Mayland and traveled long distances, averaging about 3,000 miles per week.

On October 14, eleven days after he started using the tractor, the clutch pedal broke off in Lewisburg, West Virginia. Plaintiff had it welded there and that night at Stephens City, Virginia, the engine 'started to roaring' and the drive shaft of the tractor broke and fell onto the highway. The next morning plaintiff took the drive shaft to the shop of defendant Truck & Equipment Corporation in Harrisonburg, Virginia, where it was repaired at no cost to plaintiff. According to Eugene Kauffman, service manager, a new clutch pedal was ordered at no cost to plaintiff, but when it arrived plaintiff did not want it installed as the welded pedal was 'doing all right.'

Daniels testified that he continued to have trouble with the vehicle and complained to the company. Defendant Truck & Equipment Corporation repaired the injectors after the tractor had been operated about 21,000 miles, replaced the air compressor at 29,342 miles, and replaced the exhaust valve at approximately 36,000 miles. These repairs were made at no cost to plaintiff.

On December 3, plaintiff brought the tractor to the company's shop. He complained of 'smoking and loss of power' and he stated that the engine was in a 'tight bind'. He testified that he asked the mechanic 'to pull the head and the pan off to see what was causing the bind and the tightness of that engine', but this was not done. Kauffman, the service manager, admitted that he complained about 'not having enough power' and smoking but said that was a common complaint about diesel engines. 'You hear that from ninety-nine out of a hundred on that.' Plaintiff's exhibit No 1 (repair order) shows that work was done on the engine at that time pursuant to a complaint of excessive smoking and loss of power.

On February 27, 1960, about five months after the date of delivery, plaintiff's relief operator was driving the tractor along the highway near Harrisonburg, Virginia, when suddenly 'it sounded like the transmission was coughing' and the vehicle was pulled to the side of the highway and brought to a stop. The engine was badly damaged. There was a hole in the side of the block and in the bottom of the oil pan.

Kauffman, who investigated the cause of the damage, had this to say: 'The connecting rod had broke or either the bolt had broke, letting the rod come loose, or the rod itself had broke. It was so mangled up it was hard to tell which had broken first. But anyway, it was related right with the connecting rod itself.' No complaint had ever been made to defendants concerning the connecting rod.

As a result of the damage the company installed a new diesel engine at a cost of $2,546.31. Since the old engine had been operated 51,372 miles and approximately 5 months, the company, relying upon the terms of the express warranty, fixed plaintiff's share of the replacement cost at approximately $1,200. Subsequently, a 'policy adjustment' was voluntarily made by defendants, and plaintiff's share of the cost was reduced to $649.31. Accoring to Robert Plecker, manager of Truck & Equipment Corporation, plaintiff did not complain about this bill and later the unpaid balance of $382.83 on his open account was 'marked off' the books as a bad debt.

After the new engine was installed, plaintiff operated the tractor and generally complained that the engine acted 'the same as the first.' He testified that the new engine was 'tight and wouldn't turn loose', 'it binded' and 'didn't pull right.' Plaintiff became in arrears in payment of his monthly installments, and in a letter dated October 19, 1960, he promised to make a payment 'on my truck next week'. He also requested that his payments be reduced to $250 a month. No mention was made in the letter of any claim for damages on breach of warranty or on any other ground. Subsequently, the tractor was repossessed because monthly payments were past due. Approximately a year later plaintiff instituted this action.

Plaintiff has made nine assignments of error. In his first assignment he says that the court erred in sustaining defendants' demurrer to his original motion for judgment, which alleged breach of warranty and also wrongful repossession of the tractor. He argues that there was no misjoinder of causes of action, because both causes grew out of the same conditional sales agreement.

In support of his position, plaintiff cites DuPont De Nemours & Co....