G. M. C. Truck Co. v. Kelley

• Decision Date: 16 December 1924
• Docket Number: Case Number: 13836
• Citation: 105 Okla. 84,231 P. 882,1924 OK 1132
• Parties: G. M. C. TRUCK CO. v. KELLEY.
• Court: Oklahoma Supreme Court

1924 OK 1132

231 P. 882

105 Okla. 84

G. M. C. TRUCK CO. v. KELLEY.

Case Number: 13836

Supreme Court of Oklahoma

Decided: December 16, 1924

Syllabus

¶0 1. Appeal and Error--Harmless Error--Excluded Cause of Action--Failure to Formally Withdraw Evidence.

Where, after introduction of some of the evidence, plaintiff is required by the court to elect which of two causes of action he will prosecute, and no formal election is so made, but the cause is tried and submitted to the jury only upon one, the failure of the court specifically to withdraw from the jury any evidence theretofore introduced under the excluded cause, is harmless error in the absence of specific request for such formal withdrawal and an affirmative showing of prejudice resulting therefrom.

2. Sales--Implied Warranty--Motor Truck.

In the absence of contract which negatives the same, there is an implied warranty in the sale of a motor truck that it is suitable to perform the ordinary work for which it was made.

3. Same.

That the article sold was definite and well-known furnishes no exception to said rule as applied to sale of machinery.

4. Same--Dealer--Bound by Implied Warranty. That the vendor was a regular dealer--not the manufacturer of such truck--furnishes no exception to the rules under syllabi two and three, supra, where the article is sold in the ordinary course of business.

5. Same--Caveat Emptor--Defects Latent.

The maxim of caveat emptor in such case does not apply if the defect in new machinery sold is latent, is not discoverable upon examination, and such defect results in breach of such implied warranty.

6. Disposition of Cause.

Record examined, and held, the evidence reasonably tends to support the breach of implied warranty sued upon and the damages thereon.

Rogers & Jones (Merwin Haven and A. C. Saunders, of counsel), for plaintiff in error.

Linn & Spradling and Harry G. Davis, for defendant in error.

ESTES, C.

¶1 Parties will be referred to as they appeared in the trial court, inverse to their order here. Plaintiff, Kelley, bought a motor truck from defendant corporation for $ 2,950. As finally amended, plaintiff's petition contained two causes of action. In the first, it was alleged that, as a part of the purchase, defendant "Impliedly warranted that the truck was suitable to perform the ordinary work which said truck was made to do." Plaintiff also alleged wherein the truck failed to comply with such warranty; that said price was the reasonable market value of said truck if same had been as warranted: that the actual value of same at the time of the purchase was $ 1,000; that he had paid out certain sums as expenses in repairing the truck. In the second cause of action, plaintiff alleged that defendant, in repairing the truck, willfully and negligently placed in the engine a crooked crankshaft, which caused delay and inconvenience in its use, and expenses, and the loss of $ 3,000 in profits. Defendant answered by general denial, specifically denying the implied warranty, and alleged that plaintiff knew and elected to purchase, and that the truck was sold under an express warranty of the manufacturer against defects in material and workmanship under normal use, to be made good by the manufacturer under certain regulations, and providing that such warranty was in lieu of all others, expressed or implied, and that the manufacturer neither assumed nor authorized any other person to assume for it any other liability in connection with the vehicle. Judgment was for plaintiff for $ 1,950, from which defendant appeals. 1. It will be noted that the first cause of action was on implied warranty, and the second sounded in tort. The first assignment is that the court erred in refusing, at the beginning of the trial, to sustain the motion of defendant to require plaintiff to elect on which cause of action he would proceed. The court stated the motion would be overruled "at this time." After considerable evidence had been introduced by plaintiff, the court, sua sponte, sustained the motion. Neither at the time nor later did the plaintiff* formally elect. By instruction, the court limited the jury to $ 1,950, thus eliminating the claim of plaintiff for speculative and other damages, and limited plaintiff's recovery to damages under an implied warranty under the first cause of action. At no time did the defendant request the court otherwise to admonish the jury or require formal election of plaintiff. In First National Bank of Maysville et al. v. Alexander, 49 Okla. 418, 153 P. 646, the court said:

"In view of this ruling, had counsel desired a more specific withdrawal of the evidence, undoubtedly, upon request being made, the same would have been granted by the court."

¶2 We think plaintiff did, in fact, elect to prosecute only the first cause of action, and the instructions are consonant therewith. Counsel for defendant, in their brief, concede that the cause was submitted to the jury only under the theory of the first cause of action. It is not shown that defendant was prejudiced by any evidence introduced prior to the order requiring election. If there was error in refusing at the beginning of the trial to require such election, it was harmless.

¶3 2. Defendant's second proposition is that the petition failed to state facts sufficient to constitute a cause of action. The truck was purchased on an ordinary dealer's order, in writing and exhibited to the petition. Because the same did not contain any warranty, plaintiff contends there could be no implied warranty as sued upon. The rule in this state is that in the absence of contract which negatives the same, there is an implied warranty in the sale of machinery that it is suitable to perform the ordinary work for which it is made. Nettograph Meh. Co. v. Brown et al., 28 Okla. 436, 114 P. 1102; Standard Sewing Mch. Co. v. New State Shirt & Overall Mfg. Co., 42 Okla. 554, 141 P. 1111; Wallace v. L. D. Clark et al., 74 Okla. 208, 174 P. 557. This rule obtains, and such implied warranty does not contradict or conflict with an express general warranty in the sale of machinery. Fairbanks, Morse & Co. v. Miller et al., 80 Okla. 265, 195 P. 1083. In 23 R. C. L. 1402, it is laid down that the fact that a contract of sale is in writing does not necessarily exclude warranties implied by law.

¶4 3. It is next contended that there could be no implied warranty because the petition alleged a sale of a definite, well-known article. This works no exception to the foregoing rule. Seitz v. Brewer Refrigerator Mach. Co., 141 U.S. 510, 35 L. Ed. 837, is cited. That case is clearly distinguishable in that the implied warranty involved was that a refrigerator be reasonably fit to accomplish a certain result. In the instant case the implied warranty alleged was that the truck would perform the ordinary work for which it was made. The Seitz Case is, in fact, consonant with the rule herein, for Chief Justice Fuller therein says:

"The only implication in regard to it (refrigerator machine) was that it would perform the work the described machine was made to do, and it is not contended that there was any failure in such performance."

¶5 4. It is further contended that no cause of action is alleged because the petition shows that defendant was a dealer, and it is not alleged that he had knowledge of latent defects. The authorities make no distinction in applying the foregoing rules to such implied warranty to a sale of machinery, whether the sale be made by the manufacturer or by the dealer. Judge Sanborn, in Davis Calyx Drill Co. v. Mallory et al., 137 F. 332, announces:

"But no implied warranty that a machine, tool, or article is suitable to accomplish a particular purpose or to do a specific work arises where the vendor orders of the manufacturer, or purchases of the dealer a specific described or definite machine, tool or article, although the vendor knows the purpose or work which the purchaser intends to accomplish with it, and assures him that it will effect it. Such an assurance is but the expression of an opinion, when it is

...