Detroit Vapor Stove Co. v. J.C. Weeter Lumber Co.

• Decision Date: 25 May 1923
• Docket Number: 3866
• Citation: 215 P. 995,61 Utah 503
• Court: Utah Supreme Court
• Parties: DETROIT VAPOR STOVE CO. v. J. C. WEETER LUMBER CO

215 P. 995

61 Utah 503

DETROIT VAPOR STOVE CO. v. J. C. WEETER LUMBER CO

No. 3866

Supreme Court of Utah

May 25, 1923

Appeal from District Court, Seventh District, Carbon County Dilworth Woolley, Judge.

Action by the Detroit Vapor Stove Company against the J. C. Weeter Lumber Company. Judgment for plaintiff, and defendant appeals.

REVERSED, AND REMANDED WITH DIRECTIONS.

Price &amp Foutz, of Price, for appellant.

O. K Clay, of Price, for respondent.

THURMAN, J. WEBER, C. J., and GIDEON, FRICK, and CHERRY, JJ., concur.

OPINION

THURMAN, J.

In this case judgment was entered for plaintiff on the pleadings. Defendant appeals.

The complaint of plaintiff alleges two causes of action: The first upon a certain trade acceptance, alleged to be for value, executed and delivered by defendant in May, 1920, due and payable in the following August, for the sum of $ 4,447.85; the second upon an account for goods, wares, and merchandise sold and delivered to defendant between June and October of the same year for the sum of $ 998.47. In both causes of action it is alleged that payment was demanded and refused, except the payment of $ 1,000 on the first cause of action.

The defendant answered, admitting the execution and delivery of the trade acceptance and purchase of the goods, and also the refusal to pay for the reason thereinafter stated. Plaintiff filed a general demurrer to the affirmative matter in the answer, and the demurrer was sustained. Defendant then filed an amended answer and counterclaim which was also demurred to by plaintiff, and the demurrer sustained, after which defendant proposed certain amendments to its answer and counterclaim, but the proposed amendments were rejected. Defendant elected to stand upon its answer whereupon judgment was entered for plaintiff on the pleadings for the amounts prayed for in the complaint.

The principal question to be determined is, Did the amended answer and counterclaim state facts sufficient to constitute a defense to plaintiff's action? In the foregoing statement, for the sake of brevity, we have omitted many details which, so far as may be necessary, will be supplied in the course of this opinion.

After admitting the purchase of the goods as alleged in the complaint, but denying that the trade acceptance was given for value, defendant for further answer and counterclaim, among other allegations, alleged certain matter which it claims to be warranties and breaches thereof, as follows:

"(3) Defendant further alleges that the said plaintiff, by and through its duly authorized agent, in order to induce the said defendant to purchase from said plaintiff the goods, wares, and merchandise mentioned in said amended complaint and consisting of vapor stoves, heaters, and ovens, warranted and represented to this defendant that said stoves, heaters, and ovens were first class and would give first-class satisfaction; that said defendant could not recommend them too highly; that the said plaintiff would stand by any recommendation concerning said stoves, heaters, and ovens as to their being first class; that said stoves, heaters, and ovens were the best and finest oil stoves on the market; that anybody with ordinary intelligence could operate them successfully; that said stoves, heaters, and ovens will sell like hot cakes; that said stoves, heaters, and ovens are far superior to an ordinary range coal stove for cooking and baking; that these stoves, heaters, and ovens are one of the biggest drawing cards that the Weeter Lumber Company ever had; that these stoves will be sold and the said defendant will have to have another car before the season is over.

"(4) That relying upon said representations, warranties, and statements, and believing the same to be true, the said defendant was thereby induced to purchase said stoves, heaters, and ovens from said plaintiff; that notwithstanding the fact that the agent of said plaintiff knew that said defendant was purchasing said stoves, heaters, and ovens to resell to its customers at a profit and knew that said defendant had no knowledge or previous experience of the character or kind of said stoves, heaters, and ovens, the said representations and warranties of plaintiff were untrue in every particular and known to be untrue by said plaintiff at the time they were made; that the said stoves, heaters, and ovens proved to be utterly unfit for the purposes for which they were bought, and because of such unfitness the defendant has been compelled to take back a number of said stoves, heaters, and ovens which said defendant had sold to its customers, and that it now has on hand at least 102 of said stoves, heaters, and ovens which said defendant is unable to sell because of their unfitness for the purposes for which they were warranted; and that the said stoves, heaters, and ovens are of no value to the said defendant; and that by reason of the representations and warranties made by said plaintiff which induced said defendant to purchase said stoves, heaters, and ovens and of the falsity of the same the said defendant has suffered damages in the sum of $ 8,216."

Defendant, as a further answer and counterclaim, alleged certain other matter as promises and stipulations on the part of plaintiff to induce defendant to purchase the goods. The promises and stipulations are alleged as follows:

"(2) Defendant further alleges that at the time that said contract of sale by the plaintiff to the defendant and as a consideration for the purchase of said stoves, ovens, and heaters by said defendant from said plaintiff, the said plaintiff promised and agreed with said defendant that the said agent making said sale for and on behalf of said plaintiff to said defendant that he (the said agent) would make as many demonstrations of said stoves, heaters, and ovens to prospective purchasers as would be necessary to sell all of said stoves, heaters and ovens during the season of 1920 and that he (the said agent) would aid and assist said defendant to sell all of said stoves, heaters, and ovens during the season of 1920, and that, relying upon said promise, undertaking, and agreement so made by said agent for and on behalf of said plaintiff, this defendant placed said order for said stoves, heaters, and ovens mentioned in the first and second causes of action in plaintiff's amended complaint and purchased the same in order to resell to its customers; that notwithstanding said promises and agreements on the part of said plaintiff it has failed to make any demonstrations of the fitness of said stoves, heaters, and ovens for the purposes for which they were intended and so purchased, save and except only two; that it has failed and refused to make the necessary demonstrations to prospective purchasers to sell said stoves, heaters, and ovens, and failed and refused to further aid said defendant to sell said stoves, heaters, and ovens, and in consequence of said failure on the part of said plaintiff to carry out its said promises and agreements the said defendant has been unable to sell said stoves, heaters, and ovens, and it now has on its hands 143 of said stoves, heaters, and ovens which it cannot sell, even though it has used every effort so to do, which said heaters, stoves, and ovens are in the warehouse of said defendant at Price, Utah, and this defendant is willing, ready, and able to return the same to said plaintiff, and hereby offers to return said heaters, ovens, and stoves to said plaintiff.

"(3) That because of the failure and refusal of said plaintiff to keep and perform its promises as herein alleged the said defendant has suffered damages in the sum of $ 8,216.

"For a further answer to the third and fourth paragraphs as contained in the first cause of action of plaintiff's amended complaint this defendant alleges that it made and executed to said plaintiff the said trade acceptance mentioned in said paragraphs upon the promise and representation that the said plaintiff would have its agent in Price, Utah, in July following, and as many other times as were necessary to make demonstrations of said stoves, heaters, and ovens in order to sell the same, and that said agent would aid and assist said defendant in the sale of said stoves, heaters, and ovens, and relying upon said promises, agreements, and representations made by said plaintiff, the said defendant executed and delivered to said plaintiff said trade acceptance and not otherwise; that said plaintiff failed and refused to perform said promise and agreement as hereinbefore alleged."

For convenience in making reference we have italicized certain parts of the alleged promises and stipulations which in our opinion are of controlling importance.

As far as concerns the alleged warranties in the first paragraph above quoted, we are constrained to adopt the view of respondent that they were merely "dealer's talk" and not warranties enforceable either as a defense or as an independent cause of action. For a dealer to say that the article he offers for sale "will sell like hot cakes" may have a tendency to induce an ardent lover of hot cakes to make an improvident purchase, but it affords him no grounds of action or defense if the statement proves to be false. This proposition is amply supported by the authorities relied on by respondent. 35 Cyc. 71; Hurley v. Wilky, 18 Ariz. 45, 156 P. 83; Johnson v. Walker-Plath Motor Co., 68 Colo. 160, 187 P. 1029; Elgin v. Snyder, 60 Ore. 297, 118 P. 280.

In Cyc., supra it is said:

"Commendatory expressions and extravagant statements such as men commonly use to puff their wares and induce others to enter into bargains are not deemed to be representations of fact."

A careful examination of each and every statement relied on as a warranty in the quoted...