Duff v. Bonner Bldg. Supply, Inc.
| Decision Date | 04 August 1982 |
| Docket Number | No. 13822,13822 |
| Citation | 103 Idaho 432,649 P.2d 391 |
| Parties | , 34 UCC Rep.Serv. 888 David DUFF, Plaintiff-Appellant, Cross-Respondent, v. BONNER BUILDING SUPPLY, INC., an Idaho Corporation, Defendant-Respondent,Cross-Appellant. |
| Court | Idaho Court of Appeals |
R. Romer Brown, Coeur d'Alene, for David Duff.
Gary A. Finney, Sandpoint, for Bonner Bldg. Supply Co.
This case involves a breach of implied warranty of merchantability in the sale of a product. I.C. § 28-2-314. The case was tried in the magistrate division of the district court. The defendant, Bonner Building Supply, Inc., appealed to the district court from the judgment entered by the magistrate in favor of the plaintiff, David Duff. On that appeal the district court entered an order remanding the matter to the magistrate for determination of the percentage of fault attributable to each party and accordingly to reduce the amount of the judgment. Duff appeals from the order of the district court, and Bonner cross-appeals. We reverse the order of the district court and affirm the judgment entered by the magistrate.
The primary issue before us involves the effect, if any, of negligence on the part of a purchaser in an action for damages resulting from the breach of warranty. 1 Other issues include whether the order appealed from is an appealable order; whether the magistrate, affirmed by the district court, erred in finding a breach of warranty; whether the magistrate used a proper measure of damages in the judgment for Duff; whether the appeal by Bonner from the magistrate division to the district court should have been dismissed; and allowances of attorney fees.
Bonner Building Supply, Inc., deals in lumber products, selling at retail to contractors and do-it-yourself house remodelers. David Duff purchased tongue-and-groove fir lumber from Bonner for use as wall paneling in his house. He informed Bonner of the intended use. Bonner represented to Duff that the lumber was kiln-dried. According to testimony at trial, kiln-dried lumber should have a relatively low moisture content not exceeding 19%, although it is still acceptable in the industry if up to four out of eighty pieces exceed this figure.
Duff hauled the lumber home and stored it in his garage under cover, as it had been stored at Bonner Building Supply. He installed the paneling himself, beginning soon after he had the lumber at his house and finishing three weeks later. Installation was made by gluing the lumber up with panel adhesive and then fastening it with nails.
Significant shrinkage occurred in the paneling, which Duff noticed in the early fall of the same year it was installed. Some of the individual boards shrank one-half inch in width, enough to pull the wood tongues from their adjacent grooves and to create unsightly gaps between boards in the paneling. Duff sued Bonner for the costs of repair and replacement of the allegedly defective paneling, claiming breach of implied warranty.
After trial, the magistrate concluded that Bonner Building Supply was a merchant of lumber products within the definition of I.C. § 28-2-104(1), and that there was a breach of the implied warranty of merchantability, I.C. § 28-2-314. Neither an express warranty, see I.C. § 28-2-313, nor an implied warranty of fitness, see I.C. § 28-2-315, was found. The magistrate found that the breach resulted because the contract description called for kiln-dried lumber and the moisture content of the lumber sold to Duff exceeded the acceptable moisture content of kiln-dried lumber. However, the magistrate determined that the manner in which Duff installed the paneling "was not in accordance with good and prudent practices" because he failed to equalize the moisture content of the lumber prior to installation. Equalization is accomplished by stacking the lumber for at least two weeks in the room where it is to be installed, with the boards spaced apart so air circulation can equalize the lumber moisture content with the air in the room.
The proximate cause of Duff's damages was determined to be the shrinkage of the lumber due to the evaporation of the excessive moisture content. Duff's method of installation was found by the magistrate not to be a superseding factor, i.e., it did not break the causal connection between the defective product and the damage. Therefore, Bonner Building Supply was ordered to pay damages to Duff for his costs of repair and replacement of the paneling.
On appeal, the district court reviewed the transcript of the trial and affirmed the findings of fact of the magistrate. The magistrate's conclusions of law were also affirmed, with one exception. The district judge ruled that the magistrate erred by failing to apportion the damages between Duff and Bonner Building Supply, in light of the determination that Duff's installation method was not prudent. Holding that the conduct of each party was a causative factor in Duff's loss, the district court remanded the matter to the magistrate for a determination of the percentage of comparative fault attributable to each party, and for a proper adjustment of the damages pursuant to I.C. §§ 6-801, 6-802. Duff now appeals from that order.
As a preliminary matter, Bonner contends that an appeal of the district court's order of remand should not be allowed. It argues that the resolution of the case is not final and is not appealable because the district court merely returned the case to the magistrate for further findings. Although there may be some merit to this argument, an order of a district court upon appeal, remanding the matter to the magistrate division, is appealable to the Supreme Court as a matter of right, by rule. See I.A.R. 11(a)(1).
In regard to the warranty cause of action, I.C. § 28-2-314(1) provides that, unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. A merchant is one who deals in goods of the kind involved in the transaction. I.C. § 28-2-104(1). Bonner Building Supply deals in lumber products. We agree with the magistrate's finding that Bonner Building Supply is a merchant in this transaction for the purposes of I.C. § 28-2-314. Because no steps were taken to exclude any implied warranties, an implied warranty of merchantability arose with the sale of the lumber to Duff pursuant to I.C. § 28-2-314(1).
For the purpose of this action, an implied warranty of merchantability means the lumber had to at least pass without objection in the trade under the contract description, I.C. § 28-2-314(2)(a), and the lumber also had to be fit for the ordinary purposes for which it was to be used. I.C. § 28-2-314(2)(c); Consolidated Supply Company v. Babbitt, 96 Idaho 636, 534 P.2d 466 (1975); see also Robinson v. Williamsen Idaho Equipment Company, 94 Idaho 819, 828, 498 P.2d 1292, 1301 (1972).
The burden is upon a plaintiff in a warranty cause of action to show not only the existence of a particular warranty, but also a breach arising from unsuitability of the goods at the time of delivery and a loss proximately caused by such breach. Martineau v. Walker, 97 Idaho 246, 247-248, 542 P.2d 1165, 1166-1167 (1975). Here the lumber was contracted to be kiln-dried lumber containing a moisture content of not more than 19%. The magistrate found from the evidence that normal shrinkage would not exceed three-eighths of an inch for lumber with 19% moisture content of the width of that sold to Duff. Because some of the lumber sold to Duff shrank up to one-half inch, the magistrate concluded the moisture content exceeded 19% and therefore the lumber did not meet the contract description calling for kiln-dried lumber. Also, because of the excessive shrinkage, the lumber was not fit for the ordinary purpose for which it was used, i.e., interior wood paneling. The excessive shrinkage was the proximate cause of Duff's damages.
The magistrate also determined that there was no basis to find that the lumber had changed from the time Duff took delivery of the lumber until it was installed. Thus, Duff proved that (1) the implied warranty of merchantability arose in Bonner Building Supply's sale of lumber; (2) this warranty was breached because the lumber, exceeding 19% moisture content, failed to meet the contract description calling for kiln-dried lumber and was not fit for the ordinary purpose of interior wall paneling; (3) the excessive moisture content existed at the time Duff took delivery; and (4) Duff suffered loss caused by shrinkage resulting from the excessive moisture content. The findings of breach of warranty are supported by substantial and competent evidence, and although conflicting testimony was offered by Bonner Building Supply, we will not disturb those findings on appeal. Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967).
Next we address the district court's determination that comparative negligence is a defense to a breach of warranty action where a plaintiff seeks recovery for the costs of repair and replacement of defective goods. As authority for its position, the district court relied on Hoffman v. Simplot Aviation, Inc., 97 Idaho 32, 539 P.2d 584 (1975). In that case our Supreme Court said that breach of warranty to provide a personal service occurred when the service was not performed...
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