Dunn Rd. Mach. Co. v. Charlevoix Abstract & Eng'g Co.

• Decision Date: 03 June 1929
• Docket Number: No. 24.,24.
• Citation: 225 N.W. 592,247 Mich. 398
• Court: Michigan Supreme Court
• Parties: DUNN ROAD MACHINERY CO. v. CHARLEVOIX ABSTRACT & ENGINEERING CO.

247 Mich. 398

225 N.W. 592

DUNN ROAD MACHINERY CO.

v.CHARLEVOIX ABSTRACT & ENGINEERING CO.

No. 24.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Charlevoix County; Parm C. Gilbert, Judge.

Action by the Dunn Road Machinery Company against the Charlevoix Abstract & Engineering Company which gave notice of its claim for recoupment of damages. Judgment for plaintiff for less than the amount sued for, and both parties bring error. Affirmed.

Argued before the Entire Bench.

Chink & Williams, of East Jordan, for appellant.

B. H. Halstead, of Petoskey, for appellee.

McDONALD, J.

This is an action upon certain promissory notes aggregating $1,753, given by the defendant in part payment of a road machine, purchased July 14, 1922, as evidenced by a written contract of that date.

The plaintiff is a manufacturer and dealer in road machinery at Conneaut, Ohio. The defendant is engaged in part in the building of concrete roads, and has its principal place of business at Charlevoix, Mich.

About July 1, 1922, the defendant wrote to the plaintiff for information and prices on a road-finishing machine, stating that it must be for 16?x18' finishing work on concrete prvement and must pass the specifications of the Michigan state highway department. No reply seems to have been made to this letter, but evidently the plaintiff referred the matter to its Michigan representative, who very soon thereafter called upon the defendant, with the result that a written contract was entered into for the purchase of a machine. The consideration was $2,630, of which $877 was paid on delivery and the balance in notes of which the notes sued upon are renewals. The machine was delivered, but failed to do the work for which it was purchased. Defendant refused to pay the notes. This suit was brought. Defendant gave notice under its plea that it would claim the right to recoup damages in the sum of $2,904.36 for breach of warranty. On the trial, the jury fixed the defendant's damages at $929.76 and gave the plaintiff a verdict for $1,323.24. Judgment was entered on the verdict. Both parties claim error.

The principal question involved is whether there was an implied warranty that the machine was reasonably fit for the purpose for which it was purchased. The following provisions of the Uniform Sales Act of Michigan are applicable:

Section 11846, C. L. 1915:

‘Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

‘(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. * * *

‘(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. * * *

‘(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.'

We think the undisputed facts in this case bring the contract within subdivision (1) above quoted. The defendant made known to the plantiff the purpose for which it desired the machine and trusted to the skill and judgment of the plaintiff to furnish a machine suitable for that purpose. In view of these facts, both by the common rule and by virtue of the statute the defendant had a right to rely on an implied warranty of fitness; and this right is unaffected by the fact that the contract contains an express warranty of material and workmanship, because that warranty is in no way inconsistent with the warranty implied.

But the plaintiff contends that the doctrine of implied warranty does not apply to the facts in this case, that the question is governed by subdivison (4) above quoted, which provides that there is no implied warranty as to fitness in case of a contract to sell a specified article under its patent or other trade-name. Subdivision (4) is a restatement of...