Federal Ins. Co. v. International Harvester Co.

• Decision Date: 25 February 1952
• Parties: , 48 O.O. 458 FEDERAL INS. CO. v. INTERNATIONAL HARVESTER CO.
• Court: Ohio Court of Appeals

Page 369

91 Ohio App. 369

108 N.E.2d 352, 48 O.O. 458

FEDERAL INS. CO. v. INTERNATIONAL HARVESTER CO.

Court of Appeals of Ohio, Cuyahoga County.

Feb. 25, 1952.

Syllabus by the Court.

1. Where a manufacturer sold trucks under a written contract containing an express warranty that they were free from defect in material and workmanship and reciting that the seller's obligation under the warranty was 'limited to making good at its factory any part or parts thereof which shall be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective,' and a petition by the subrogee of the buyer against the seller alleged that it was impossible to comply with the condition in the warranty regarding the return of the defective parts and that defendant, by its conduct, waived compliance with the condition, the allegations constituting legal conclusions were not admitted by demurrer and the petition fails to set forth a cause of action, in that it fails to allege circumstances constituting a waiver of the conditions of the express warranty pleaded.

2. Under the Uniform Sales Act adopted by Ohio General Code Section 8395(6), no warranty can be implied which is inconsistent with an express warranty.

T. Edward McNamara and Robert J. Gemperline, Cleveland, for appellant.

Squire, Sanders & Dempsey, Cleveland, for appellee.

THOMPSON, Judge.

This case comes to this court on appeal on a question of law by plaintiff, appellant, as the result of the action of the trial court in sustaining a demurrer to plaintiff's amended petition and, upon failure of plaintiff to plead further, entering judgment in favor of defendant, appellee. No opinion having been rendered by the trial court, and there being no Ohio case directly in point, the reasons for this court's decision will be briefly stated.

The facts in the amended petition disclose that in April 1944, the defendant sold to one Downing two of its trucks insured by plaintiff against loss by fire. Both of these trucks were destroyed by fire the following month. Subsequently, plaintiff paid the insured for the loss and thereby became subrogated to any claims of its insured against defendant. The trucks were originally sold to Downing under a written warranty, a part of which is set forth in the amended petition as follows:

'The International Harvester Company warrants each new International Motor Truck to be free from defect in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective, provided that such part or parts shall be so returned to it not later than ninety (90) days after delivery of such vehicle to the original purchaser, and that at the time of such return, the said vehicle shall not have been operated in excess of five thousand (5,000) miles.'

The amended petition alleges further that there was a defect in workmanship in that the cables selected by defendant for the purpose of connecting the storage batteries with the ignition device were too short or that there was a defect in the manner and method by which the cables were attached to the batteries and starting devices causing the insulation on the battery cables to wear, resulting in a short circuit which in turn ignited gasoline and caused the fire which destroyed the motor vehicles. The amended petition recites further that plaintiff did not have sufficient knowledge to set forth with certainty the exact nature of the defect or defects but asserts that defendant had full knowledge thereof. The amended petition alleges further that, by reason of the facts set forth, the defendant breached its warranty and that as a result of the defective workmanship and the breach of warranty, the trucks sold to Downing were lost by fire. The amended petition alleges further that because of the nature of the loss it has been impossible to comply with the condition in the warranty regarding the return of defective parts and that defendant by its conduct waived compliance with said condition and that both vehicles had been operated less than 5,000 miles. The amended petition states further that prior to the fire, each of the two vehicles had a reasonable value of $6,000, that their total salvage value after the fire was $2,500, that plaintiff had paid the loss in the amount of $9,500, to the insured Downing, and that by reason thereof plaintiff had become subrogated to all rights that the latter had against the defendant. The amended petition therefore prayed judgment against the defendant in the sum of $9,500 with interest and costs.

The defendant, the International Harvester Company, filed a demurrer to the amended petition 'for the reason that said amended petition does not state facts which show a cause of action against the defendant.'

The trial court sustained the demurrer and upon failure of plaintiff to plead further, final judgment was rendered for defendant. The case is therefore before this court on the single assignment of error that the trial court erred in holding that plaintiff's amended petition failed to state a cause of action.

Examination of the warranty set out in the amended petition discloses the nature of the original contract between the defendant and Downing, and the rights of Downing to which plaintiff became subrogated by payment of the loss.

In the brief on behalf of plaintiff the familiar rule is cited, applicable to insurance contracts, and appearing in Farmers National Bank v. Delaware Ins. Co., 83 Ohio St. 309, 94 N.E. 834, that a printed condition of doubtful meaning susceptible of two or more constructions will be construed most favorably to those dealing with the party employing the doubtful or ambiguous language. In this case, however, we do not find that the language of the express warranty is ambiguous or susceptible of two meanings. In line with our finding that no such ambiguity is present in this instance, we must recognize that parties to a contract of sale may generally provide for a limitation of the rights of the buyer in case of breach of a stipulated warranty.

In the instant case, it will be noted that the breach alleged in the petition is that of an express warranty. No warranty can be implied which is inconsistent with an express warranty. 35 Ohio Jurisprudence 870, Sales, Section 142. In Phillips v. Sharp, 44 Ohio App. 311, 185 N.E. 562, it was held that, where there is an express warranty, a warranty cannot be...