Ford Motor Co. v. Cullum
| Citation | 96 F.2d 1 |
| Decision Date | 09 May 1938 |
| Docket Number | No. 8342.,8342. |
| Parties | FORD MOTOR CO. v. CULLUM. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gabe P. Allen, of Dallas, Tex., for appellant.
Glover Johnson, of Fort Worth, Tex., for appellee.
Before FOSTER and HOLMES, Circuit Judges, and STRUM, District Judge.
Ford Motor Company sold to Dyke Cullum, its retail sales agent at Fort Worth, Tex., a Lincoln automobile to be used as a demonstrator. The contract of purchase was consummated at Detroit, Mich., where Cullum paid the purchase price, took delivery of the car, and personally drove it back to Texas. Mechanical defects developed in the car almost immediately, rendering it useless as a demonstrator, and substantially impairing its operating efficiency for ordinary use.
Ford Company, through its own agents at Dallas, several times attempted to remedy these defects, but without success. Thereupon, Cullum sued for rescission, tendering back the car. Ford appeals from a judgment below, awarding Cullum a recovery of the full purchase price, and vesting title and possession of the car in Ford.
Appellee, Cullum, contends that because the car was sold for a demonstrator, there was an implied warranty of fitness for that purpose, for breach of which rescission will lie.
Appellant relies upon the following express warranty printed upon the back of the written order for the car, and expressly referred to therein, as excluding any implied warranty of fitness: "The Lincoln Motor Company warrants each new vehicle * * to be free from defects in materials and workmanship, under normal use and service, its obligations being limited to replacing * * * any part or parts" shown to be defective; "this warranty being expressly in lieu of all other warranties, expressed or implied, and all other obligations or liabilities on its part, and it neither assumes nor authorizes any individual, body corporate or others to assume for it any other or additional liability in connection with the sale of its vehicles."
The contract of sale was a Michigan contract. The Uniform Sales Act, adopted in that state, provides, section 15, Comp. Laws Mich.1929, § 9454, that there is no implied warranty of quality or fitness, except, inter alia:
Generally, as well as under section 15 of the Uniform Sales Act, when an article is purchased from a manufacturer for a special and designated purpose, the purchaser relying upon the manufacturer's skill and judgment and having no opportunity to inspect or test the article, an implied warranty of fitness arises by operation of law. Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537, 28 L.Ed. 86; Bagley v. Fire Extinguisher Co., 2 Cir., 150 F. 284; Marbury Lbr. Co. v. Stearns Mfg. Co., Ky., 107 S.W. 200; In re The St. S. Angelo Toso, 3 Cir., 271 F. 245; Ideal Heating Co. v. Kramer, 127 Iowa 137, 102 N.W. 840; 55 C.J. 750. An express warranty and an implied warranty, when consistent, may exist in the same contract of sale. By express agreement, however, the parties may limit the warranty as they desire. It is a matter of contract. It is competent for the parties to stipulate that there shall be no warranty or liability other than that expressed in the contract, and a warranty of fitness will not be implied in conflict therewith. Bekkevold v. Potts, 173 Minn. 87, 216 N.W. 790, 59 A. L.R. 1164 and Annotations; 55 C.J. 722, 731; Century Electric Co. v. Detroit Copper & Brass Rolling Mills, 8 Cir., 264 F. 49; The Nuska, D.C., 300 F. 231.
An implied warranty of fitness as a demonstrator is clearly excluded by the terms of this contract of sale, even under section 15 of the Uniform Sales Act. The language of the above-quoted express warranty clearly negatives an intent to contract with respect to an implied warranty of fitness. Hummer v. Carmalt, 54 App.D.C. 157, 295 F. 978; Industrial Finance Corp. v. Wheat, 142 Miss. 536, 107 So. 382; Ford Motor Co. v. Switzer, 140 Va. 383, 125 S.E. 209; Case Threshing Mach. Co. v. Manes, Tex.Com.App., 254 S.W. 929; Little v. Widener, 226 Mo.App. 525, 32 S.W.2d 116; Fruit Dispatch Co. v. C. C. Taft Co., 197 Iowa 409, 197 N.W. 302; Elmberg Co. v....
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