Freeto Const. Co. v. American Hoist & Derrick Co., 45376
| Decision Date | 17 July 1969 |
| Docket Number | No. 45376,45376 |
| Citation | 203 Kan. 741,457 P.2d 1 |
| Parties | FREETO CONSTRUCTION CO., Appellant, v. AMERICAN HOIST & DERRICK CO., and Warner-Swazey Manufacturing Company, Inc., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Orders entered at pretrial conference have the full force of other orders
of the court and they control the subsequent course of the action, unless modified to prevent manifest injustice. (Following Brown v. Hardin, 197 Kan. 517, 419 P.2d 912.)
2. A cause of action for breach of an implied warranty accrues at the time of the breach.
3. A cause of action for breach of an express warranty accrues at the time of the breach which, under the facts appearing in the record, occurred at the time of the sale and delivery of the subject of the express warranty.
4. In an action seeking to recover damages resulting from the breakdown of a self-propelled truck crane, allegedly caused by negligence in the construction of the crane amounting to a breach of express warranty of implied fintness for a particular purpose, the record is examined, and it is held, the trial court did not err: (1) in determining the action to be in contract, under the circumstances set forth in the opinion; (2) in determining the action was barred under Laws of 1965, Chapter 354, Section 12, effective January 1, 1966, now K.S.A.1968 Supp. 60-511, if founded on a warranty in writing, or barred under K.S.A. 60-512, if founded on an oral or implied warranty; and (3) in determining the warranty sued upon whether express or implied to be a present rather than a prospective and continuing warranty.
Lawrence G. Zukel, Olathe, argued the cause, and John B. Towner, Pittsburg, was with him on the brief, for appellant.
Perry L. Owsley, Pittsburg, argued the cause and was on the brief, for appellee, American Hoist & Derrick Co.
Douglas G. Hudson, Fort Scott, argued the cause, and Douglas Hudson and David Mullies, Fort Scott, were with him on the brief, for appellee, Warner-Swazey Mfg. Co., Inc.
Plaintiff-appellant appeals from an order of the trial court which sustained motions for defendant and third party defendant for dismissal of plaintiff's action. The motions were made at pretrial conference and were based on the ground that plaintiff's action was barred by applicable statutes of limitation.
For convenience the appellant will be referred to as Freeto or plaintiff and appellees as American Hoist and Warner-Swazey or collectively as defendants.
There is no dispute in the facts which are collected from the pleadings, interrogatories and statements of counsel at a pretrial conference.
The action was instituted by Freeto to recover damages sustained by it for repairs and loss of use resulting from the breakdown of a self-propelled truck crane sold to Freeto by American Hoist. The crane carrier was manufactured by Warner-Swazey and delivered to American Hoist, who manufactured the hoist, assembled it on the carrier and sold and delivered the completed crane, through its distributor, to Freeto.
The sole issue presented concerns the application of appropriate statutes of limitation. This necessitates a recitation of events in chronological order.
On March 25, 1958, Warner-Swazey having manufactured the carrier, delivered it to American Hoist.
On May 7, 1959, American Hoist having manufactured the hoist, attached it to the carrier, sold and delivered the assembled truck crane, through its distributor, to Freeto.
On September 25, 1964, when being used in Freeto's business the crane failed while carrying a load which was allegedly within the load limits stated in literature of American Hoist concerning the particular model truck crane. Specifically, two large bolts attaching the outrigger frame of the hoist to the frame of the carrier gave way, causing the load to shift and fall, extensively damaging the crane and the load which consisted of a section of an asphalt plant.
On September 24, 1966, one day short of two years from the date of the crane failure, Freeto filed its petition in abbreviated notice form against American Hoist. Freeto alleged American Hoist was negligent in the construction of the crane and that 'this negligence amounted to a breach of express warranty of implied fitness for a particular purpose.'
Summons and a copy of the petition were served on American Hoist on September 28, 1966.
On November 9, 1966, American Hoist filed its answer to Freeto's petition and a third party petition against Warner-Swazey. Summons was served on Warner-Swazey on November 23, 1966, making it a third party defendant.
Interrogatories were submitted and answered by which the chronology of events was developed.
On February 6, 1967, American Hoist filed a supplemental answer alleging that Freeto's action was barred by the statute of limitations.
After further interrogatories were submitted and answered a pretrial conference was convened on September 22, 1967. The dates of events, heretofore recited, were stipulated to by the parties, issues were defined and at the conclusion of the conference the court carefully dictated a pretrial order in the presence of counsel. The court concluded the order with the following direction:
The trial court served the pretrial order upon counsel on October 12, 1967, and filed it October 23, 1967. No objections were made to the order as drawn.
The pretrial order contained the following statement of the court:
'* * * The action is one on contract for breach of express and implied written and oral warranties of fintness for a particular purpose. * * *'
Following the pretrial conference, Warner-Swazey filed a motion for summary judgment alleging that as against it the petition and third party petition were barred by the Kansas Statutes of Limitation.
Briefs of all parties dealing with the application of statutes of limitation were submitted and, on February 7, 1968, the trial court filed a memorandum decision. The trial court held that both the action of Freeto and the third party action of American Hoist were founded in contract and barred by applicable statute of limitations.
Freeto filed a notice of appeal, directed to both American Hoist and Warner-Swazey.
Warner-Swazey contends the appeal as to it should be dismissed since Freeto sought no judgment against it and American Hoist has not appealed from the order dismissing its third party action. Because of our disposition of this appeal, it is not necessary to deal with Warner-Swazey's position in this regard.
In its memorandum decision the trial court recited the chronology of events, as we have related, set out the contentions of the parties and legal principles applicable, and decided the issues as follows:
'5. The court finds that the action is one for breach of contract. The suit was not filed alternatively in contract and tort, but was filed as a breach of contract action. That is established by the petition and by the court's pretrial order of September 22nd, 1967. An action for breach of contract, for breach of an implied or express warranty, accrues at the time of the breach (Price, Admr. v. Holmes, 198 Kan. 100, 422 P.2d 976), and this would be on the date the truck crane was delivered to the plaintiff, May 7, 1959. Accordingly both the five and three year limitations provided by K.S.A. 60-511 and 512 expired prior to the filing of the petition herein and the action is barred.
'6. The court has not overlooked plaintiff's contention that the warranty was prospective rather than present; however, under the facts, it is apparent that the warranty was not as to the condition of the crane on some future date or what it would do on some future period, but the warranty was as to the condition and capabilities of the crane at the time of delivery, and the court finds that the warranty was a present warranty at that time. It is interesting to note that K.S.A. 84-2-725(2), a portion of the Uniform Commercial Code enacted by the 1965 Legislature (which provision was not effective at the times herein involved) provides specifically that a breach of warranty occurs at the time of delivery except where a warranty explicitly extends to future performance. Perhaps that was the law of Kansas prior to the enactment of that section of the U.C.C. However, in the instant case there was no warranty explicitly extending to futrue performance so far as the court is informed, and if the section were applicable it would not aid plaintiff.
'7. Many prior cases of the Kansas Supreme Court have stated the rule that an action for breach of contract accrues when the breach occurs rather than on the date the actual damages results from the breach. It appears to this court that any change in this rule must come from the Legislature; and that neither the Code of Civil Procedure nor the Uniform Commercial Code alters the law in this regard.
'8. The court concludes that both the action of plaintiff and the third-party petition (which also is founded in contract) are barred by the applicable statutes of limitation and this case should be dismissed at plaintiff's costs. Counsel for defendant American Hoist will please prepare an appropriate journal entry.'
It should be noted the trial court did not specifically find whether the action was for breach of an express warranty, written or oral, or of an implied warranty. This question was probably not susceptible to determination by the trial court at that stage of the litigation. Apparently, the court considered Freeto's petition and statements by counsel broad enough in this respect to allow proceeding on either premise in the alternative. Be that as it may, the...
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