Davies v. Motor Radio Co.

• Decision Date: 08 January 1951
• Docket Number: No. 21300,21300
• Parties: DAVIES v. MOTOR RADIO CO., Inc.
• Court: Missouri Court of Appeals

Page 409

236 S.W.2d 409

DAVIES v. MOTOR RADIO CO., Inc.

No. 21300.

Kansas City Court of Appeals, Missouri.

Jan. 8, 1951.

Clay C. Rogers, Lyman Field, Reed O. Gentry and William E. Tipton, all of Kansas City, for appellant.

Duvaul P. Strother, Kansas City, for respondent.

BROADDUS, Judge.

This is an action for consequential damages for breach of an alleged implied warranty arising from the sale to plaintiff by defendant of an electric refrigerating machine. Trial to a jury resulted in a verdict and judgment for plaintiff for $1,000, and defendant appealed.

The material allegations of the petition are: That sometime prior to May 17, 1946, plaintiff informed defendant that he desired to purchase 'a walk-in icebox with an electric cooling and freezing unit' for the purpose of cooling and freezing approximately 2,000 pounds of meat at one time; that thereupon defendant informed plaintiff that it could install a box with units sufficient to suit the needs of the plaintiff, and plaintiff, relying upon such representations, did on or about May 17, 1946, purchase from defendant a combination cooler at the price and sum of $1,574, and thereafter defendant installed the cooler in the premises of plaintiff; that in August, 1946, plaintiff placed 963 pounds of prime beef in said cooler and thereafter, and on or about August 29, he placed 300 pounds of horse meat in the cooler and because the cooler 'did not hold temperatures low enough to keep said meat frozen,' all of it spoiled to plaintiff's damage in the sum of $750; that as a 'further result of the failure of the equipment to maintain temperatures to keep the meat frozen,' plaintiff was required to purchase meat in small quantities at a higher price to his damage in the sum of $250.

The answer pleaded the written contract of sale which was attached to the answer as an exhibit and made a part thereof. The contract contained, among other things, this provision: 'No agreement or understanding, oral or written, which is not plainly written on this contract, before signature, shall qualify the terms thereof. The warranties and guaranties applicable to the above equipment shall be the standard warranties furnished by the manufacturers thereof, and no other.' The answer also pleaded the warranty furnished by a company which manufactured part of the equipment in question. This warranty was given and signed by the Frigidaire Division of General Motors Corporation, the material part of which is: 'We warrant every new Frigidaire Condensing Unit; and any new Frigidaire Equipment connected therewith, to be free from defect in material and workmanship under normal use and service, and we will, within one year from delivery to the original purchaser, replace without any cost to the customer, any part or portion thereof which our examination shall disclose to our satisfaction to be thus defective, * * *. This warranty does not apply to any material which has been subject to misuse, * * *; and we do not authorize any person or representative to assume for us any other liability in connection with our products.' Other allegations in the answer are not material on the issues presented here.

Plaintiff's instruction No. 1 submitted the case to the jury on the theory of breach of an implied warranty that the refrigerating machine was reasonably fit for the purpose for which it was purchased, to-wit; the cooling and freezing of a specified quantity of meat.

Plaintiff's testimony shows that he is a veterinarian. In 1946, he received a letter from defendant advertising 'walk-in coolers and freezers,' and as he was interested in purchasing one he called defendant's office. Plaintiff used horse meat as food for some of the animals under his care. When Mr. Haid, defendant's manager, came to plaintiff's place of business, plaintiff told him he intended to slaughter horses and to freeze and store the meat in an electric refrigerator suitable for that purpose; that he wanted a 'box' that would take care of 1,500 to 2,000 pounds of meat at one time, and one which would freeze the meat as well as 'cool it out'; and that he also intended to slaughter beeves for his own use and freeze the meat and keep it in the box. Mr. Haid told him that defendant could furnish such a box, and showed him certain pictures, plans and specifications. Plaintiff testified that while he informed Mr. Haid that he wanted a white enameled box with a door in the end, he did not undertake to pass on the plans or specifications exhibited to him; that he did not select any specific equipment; that he knew nothing about such equipment and relied on defendant to select, furnish, and install the proper size box, parts, and machinery to cool out and freeze the specified amount of meat. He admitted that he signed a contract of sale on March 17, 1946, the material parts of which are set forth below.

When the box was delivered, plaintiff was informed that it had been used as a demonstrator, but that it 'was satisfactory, that it would work.' The condensing unit was new. After the equipment was installed by defendant, plaintiff put four or five hundred pounds of beef in the box, but it took 36 hours to freeze one quarter of the beef. Plaintiff complained to defendant about the unsatisfactory operation of the machine and defendant attempted to remedy the situation and make the machine operate more satisfactorily. Thereafter, plaintiff put about 950 pounds of beef in the box, and the frost on the coils became so heavy that the machine would not function. A switch was installed and other work performed by defendant, but the machine was still unsatisfactory. Defendant's repair man told plaintiff that the coils in the box were 'not big enough to take care of the job.' The machine was never capable of cooling and freezing as much as 500 pounds of meat. On October 10, 1946, plaintiff was forced to dispose of 750 pounds of beef because it was spoiled. He offered evidence to show the extent of his damages.

Donald Bigbee, a refrigeration expert, testified for plaintiff that the equipment in question was insufficient to cool out 2,000 pounds of meat in 24 hours; that in his opinion it would take a week to freeze 2,000 pounds of meat, whereas meat should be frozen in 24 hours; and that the equipment was only capable of cooling, freezing, and keeping a quantity of meat equivalent to 'a chicken a day or something like that.' He said the condensing unit and coils were too small for a box the size of the one in question.

Defendant's evidence was as follows: Mr. Haid, defendant's manager, and Mr. Patterson, a salesman for defendant, testified that they went to plaintiff's place of business and made measurements and furnished drawings and specifications for the size box and equipment which they deemed necessary, and which defendant sold and installed; and that a picture of the box (Exhibit 2), the drawing (Exhibit 3), and specifications (Exhibit 4), were submitted to plaintiff at the time of the signing of the contract of sale. The drawings and specifications do not show or mention the condensing unit or indicate in any way the size or horsepower of that unit; and they do not specify the size of the coils.

Mr. Haid, defendant's representative, denied that plaintiff made any statement to him about wanting a freezer that would cool out and freeze 2,000 pounds of meat at one time; and also denied that he told plaintiff the box would take care of that amount of meat, but he did say that 'according to the manufacturer's specification sheet the freezer compartment would take care of approximately 1,330 1bs. maximum capacity.' He also testified: '* * * there are two component parts of this system, the box and its interior equipment, that is the coil, the plates, the thermostat, the shelves, racks and hooks, that is, the cooler we will say, is manufactured by United Refrigerator Company in St. Paul, Minnesota, shipped as a component unit not assembled. Everything is included, every bolt, nut and screw. Then the Frigidaire condensing unit is made by the Frigidaire Corporation and shipped in a separate crate to be applied to the unit out on the job. * * * The only thing that we selected in Dr. Davies's case was the size of the Frigidaire unit to refrigerate this cooler.'

Mr. Monroe, a refrigeration engineer, testified that he assembled and installed the equipment at the request of defendant; that the various parts were new standard equipment; that the equipment 'came through as a complete unit except the machine, and we furnished that, Motor Radio Company did.' The 'machine' referred to was the Frigidaire condensing unit. It was his opinion that the equipment was capable of freezing meat properly and in due time.

Defendant contends that the contract of sale excluded all implied warranties and, therefore, that the court erred in overruling its motion for a directed verdict. It is also contended that the court erred in refusing to admit in evidence the manufacturer's warranty set forth above.

The record shows that the refrigerating machine consisted of two units. One unit was manufactured and shipped to defendant by the United Refrigerating Company of St. Paul, Minnesota. This unit included the box and certain equipment therein, such as the cold plates, blower coil, and thermostat. The other unit was the condenser, which included the motor. The condensing unit was manufactured and delivered to defendant by the Frigidaire Division of General Motors Corporation, Dayton, Ohio. As stated in defendant's brief, 'the defendant delivered and assembled the two units at plaintiff's home. The two units assembled made up the cooler-freezer box.' It also appears that defendant selected both of the units. We think the evidence clearly shows that defendant undertook to select the constituent parts of the refrigerating machine and to assemble and install the same as a complete machine, knowing that plaintiff relied upon it to furnish a machine which would...