Diebold Safe & Lock Co. v. Breeding

• Decision Date: 06 April 1895
• Citation: 55 Kan. 104,39 P. 1035
• Court: Kansas Supreme Court
• Parties: THE DIEBOLD SAFE AND LOCK COMPANY v. HUSTON & BREEDING

39 P. 1035

55 Kan. 104

THE DIEBOLD SAFE AND LOCK COMPANY v. HUSTON & BREEDING

Supreme Court of Kansas

April 6, 1895

Error from Nemaha District Court.

THIS case was commenced before a justice of the peace of the city of Seneca, and the plaintiffs obtained judgment for $ 172 and costs. The defendant appealed to the district court, where an amended petition was filed, alleging in substance that the plaintiffs on or about the 25th of July, 1889, purchased of the Diebold Safe and Lock Company a No. 4 Diebold safe, which was represented and guaranteed to be fire-proof, for which the plaintiffs agreed to pay $ 72, one-fourth cash, and the balance in three equal payments; that on the 18th day of January, 1890, the building in which the safe was situated was burned, and the contents of the safe, consisting of notes and accounts, contracts and other valuable papers contained in said safe were burned, and asking judgment for $ 247. J L. Breeding, one of the plaintiffs, testified that "the agent warranted it to be fire-proof. He stated that the company always did that; that they guaranteed all their safes." He also testified that at the same time a duplicate contract was entered into for the purchase of the safe. The one of these duplicates signed by the plaintiffs was introduced in evidence, and reads as follows

"SENECA July 23, 1889.

"Brintnall & Harrison, General Agents Diebold Safe and Lock Company Please send me, as soon as convenient, one No. 4 fire-proof safe, approximate size inside, 19 inches high, 15 inches wide, 12 inches deep, as per page 8 of illustrated catalogue and plan of interior as specified on back of this order. Marked to Huston & Breeding, town of Seneca, county of Nemaha, state of Kansas. Ship via town of St. Joseph, and rent same to undersigned on following terms: F. O. B. cars in Seneca, Kan., $ 72, as follows: $ 18 upon arrival; balance in three notes of $ 18 each, due, respectively, in 3, 6 and 9 months from shipment. Said safe to be one of your latest styles, with all your latest improvements, and to be as per illustrated catalogue. Front of safe to be a dark wine color and finished in gold, and to be nicely finished and ornamented in your latest style. This order subject to the approval of Brintnall & Harrison. All notes given are to bear interest at the rate of 8 per cent. per annum. It is agreed above sums are to be paid as rent for said safe. When the full amount of $ 72 is paid, you are to give me a bill of sale of safe. If note is not forwarded to you at the expiration of 20 days from date of invoice, all rent shall become due at the expiration of 30 days from date of bill, and agree to accept and pay draft of amount mentioned below, and are not to countermand or attempt to annul this contract. It is agreed that the title of said safe shall not pass until notes are paid or safe paid for in cash, but shall remain your property until that time. In default of payment of said rent, you or your agent may take possession of and remove said safe without legal process. Nothing but shipment or delivery constitutes an acceptance of this contract. It is also hereby expressly agreed and understood that the foregoing embodies all the agreements made between us in any way, hereby waiving all claims of verbal agreements of any nature not embodied in this contract. I hold a duplicate copy of above contract. Agents not authorized to make collections. Amount, $ 72. Truly yours, HUSTON & BREEDING.

"Witness, ."

The jury rendered a verdict in favor of the plaintiffs for $ 247, for which amount the judgment was entered. The defendant brings the case to this court.

Judgment reversed.

Samuel K. Woodworth, for plaintiff in error.

E. G. Wilson, for defendants in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

The plaintiff (Breeding) testified to an oral warranty by the agent of the defendant that the safe was fire-proof. It will be observed that the written order for the safe, made at the time, expressly provides that the title shall remain in the defendant until the full purchase-price should be paid. The evidence shows that $ 18 was paid at the time of the delivery of the safe, and that the first note was afterward paid. At the time of the fire two notes still remained unpaid, and the title to the property therefore was still in the defendant. There could not then be a technical warranty of the article sold. It is not necessary, however, to nicely inquire into the difference in the mode of recovering damages for a breach of warranty and those resulting from the use of an article furnished for a particular purpose under a bailment. The only question we deem it necessary to decide is whether under the testimony any such warranty was made as would entitle the plaintiffs to recover, irrespective of the technical question. It appears from the plaintiffs' own evidence that the agreement which they entered into with the agent of the safe and lock company was reduced to writing. Oral evidence therefore is inadmissable to vary or enlarge its terms. (Drake v. Dodsworth, 4 Kan. 160; Brenner v. Luth, 28 id. 581; Hopkins v. Railway Co., 29 id. 544; Furneaux v. Esterly, 36 id. 539; Windmill Co. v. Piercy, 41 id. 763; Willard v. Ostrander, 46 id. 591.)

It is clear that the safe was delivered to the plaintiffs in compliance with the terms of the written order. Does this order contain what in law amounts to a warranty? There are no words in it of express warranty. Does an order, however, for a fire-proof safe imply a warranty? It is contended that this is a case of a sale of an article of the vendor's manufacture for a particular purpose, and imports a warranty that it is reasonably fit for that purpose, and free from latent defects arising in the process of manufacture and not disclosed to the vendor. In the case of Lukens v. Freiund, 27 Kan. 664, it appeared that the defendant was a miller; that two copper clasps accidentally fell into some bran which was sold to the plaintiff. The clasps were swallowed by one of the plaintiff's cows and killed her. It was held that, in the absence of express warranty, the plaintiff could not recover for his cow. The second clause of the syllabus reads as follows:

"While, when an article is ordered from a manufacturer to be by him manufactured for a specific and understood purpose, there is in some cases an implied warranty that the articles when manufactured will be reasonably fit for the purpose intended, yet when a purchase is made from him of a specific and completed article, he is to be regarded as a dealer, and his liability determined accordingly.

There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendant manufactured for sale to whomsoever would buy. It is designated in the order as a "No. 4 fire-proof safe," and the order provides that it shall be one of the defendant's latest styles and improvements thus clearly indicating that it is one of a kind of safes manufactured by the safe and lock company. "There is in America an implied warranty of identity, namely, that the article shall be of the kind or species it purports to be, or is described to be--that is, that the article delivered shall be the same thing contracted for." (Benj. Sales, [6th ed.] 636.) This proposition is illustrated in the following cases: In Henshaw v. Robins, 9 Metc. (Mass.) 83, a sale and bill of parcels of two cases of indigo was made. It was shown that the article paid for and delivered was not indigo at all, but composed of Prussian blue, chromate of iron and potash, and worthless for any purpose. It was held that the description of the article inserted in the bill of parcels amounted to a warranty that the article was such as represented. In Hawkins v. Pemberton, 51 N.Y. 198, it was held that the sale of an article as blue vitriol amounted to a warranty that it was such. In Wolcott v. Mount...