Gaffney v. Unit Crane & Shovel Corp., 140
| Decision Date | 18 October 1955 |
| Docket Number | No. 140,1954,140 |
| Citation | 117 A.2d 237,49 Del. 381,10 Terry 381 |
| Court | Delaware Superior Court |
| Parties | , 49 Del. 381 Gloria GAFFNEY and Yolanda Marano, Trading as Counties Compressor Co., Plaintiff, v. UNIT CRANE AND SHOVEL CORPORATION, a Corporation of the State of Delaware, Defendant. Civil Action |
Morton E. Evans, Wilmington, Del., and M. Weintraub, Philadelphia, Pa., for plaintiff.
E. N. Carpenter, II, of Richards, Layton & Finger, Wilmington, for defendant.
Defendant is the manufacturer of cranes, power shovels and other power driven equipment. It issues a bulletin in which it describes a certain type of truck crane known as 'Unit 1520T, Truck Crane', and represents that this particular type of truck crane, based upon 85 percent of the tipping load, with a boom length of 35 feet and working radius of 10 feet, has the capacity to lift the weight of 20 tons. It sells this equipment, including the truck crane known as 'Unit 1520T, Truck Crane', to various distributors including Stewart Equipment Company of Philadelphia, Inc.
On August 3, 1950, plaintiffs purchased a 'Unit 1520T Truck Crane', being serial No. 50206, from Stewart Equipment Company of Philadelphia, Inc., paying it the full price of $27,162, and delivery of said truck crane was made by said Stewart Equipment Company.
In making said purchase, the plaintiffs relied upon the description and representations contained in the bulletin issued by the defendant.
In fact, the plaintiffs first contacted the defendant about making the purchase of the truck crane but was referred to its distributor, Stewart Equipment Company of Philadelphia, Inc.
The affidavit of Arnold R. Corbett, vicepresident of the defendant, discloses that its method of doing business is to receive orders from dealers for machinery manufactured by it; that the machine is then assembled and shipped from Milwaukee to the dealer; that the cost of the machine is billed to the dealer, charged to his account and the title transferred to him; that the transaction by which the machine reaches the hands of the user is between the dealer and the user.
Plaintiffs accepted delivery of the truck crane and used it. They contend that no opportunity was available to test it until March 31, 1952, on which date an attempt was made to lift a ladle weighing about 18 tons under conditions set forth in defendant's bulletin, but the truck crane failed to lift it. Notice of this failure was given to Stewart Equipment Company of Philadelphia, Inc. who notified the defendant. Defendant's representative and an employee of said Stewart Equipment Company did some work on the truck crane to repair it and it was tested in the presence of defendant's representatives but again failed in the same way. Defendant continued to work on the crane in order to put it in good operating condition but was unable to make it lift 20 tons.
On November 6, 1952, plaintiff wrote to Stewart Equipment Company of Philadelphia, Inc., threatening to bring suit against it. Since that time plaintiffs have continued to use the crane and have leased it to other companies to be used.
Finally on February 16, 1954, this action was brought against the defendant, more than three years after the truck crane in question was sold by Stewart Equipment Company of Philadelphia, Inc., and delivered to the plaintiff.
It appears from the complaint, that the plaintiffs have decided to keep the truck crane in question and maintain an action against the defendant for breach of warranty, under the provisions of 6 Delaware Code § 769(a)(2).
This raises the question of whether the cause of action accrued at the time the sale was made, namely, August 3, 1950, or when the plaintiffs learned that the truck crane would not lift 20 tons.
Assuming for the purpose of argument that the plaintiffs and defendant are proper parties to this suit, the defendant contends that the suit is barred by the statute of limitations.
The contract under consideration in this case arose in the state of Pennsylvania, where the statute of limitations is six years, but there seems to be no doubt that the Delaware statute of limitations applies. This appears from the following statute:
'Where a cause of action arises outside of this State, an action can not be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action.' 10 Del.C. § 8120.
The Delaware statute of limitations provides:
'No action * * * based on a promise, no action based on a statute * * * shall be brought after the expiration of 3 years from the accruing of the cause of such action * * *.' 10 Del.C. § 8106.
I have found no decisions is this state determining this question.
The decisions in this country in reference to the question when the statute of limitations begins to run against an action for breach of warranty of personal property, hold that it depends largely upon whether the warranty is present or prospective. Where the warranty is present the rule is, in the case of a warranty of quality, kind or condition, that the warranty is broken if at all, as soon as made, and the statute of limitations begins to run from that time. In a case like the one under consideration, when the warranty is as to the quality or condition of goods at the time of their sale, if the warranty is broken it is broken at the time of sale. Woodland Oil Co. v. A. M. Byers & Co., 223 Pa. 241, 72 A. 518, 132 Am.St.Rep. 737; E. O. Painter Fertilizer Co. v. Kil-Tone Co., 105 N.J.L. 109, 143 A. 332; Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142; Bancroft v. San Francisco Tool Co., 5 Cal.Unrep. 586, 47 P. 684; Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 23 N.E. 372, 16 Am.St.Rep. 753.
The supreme Court of this state in the case of Mastellone v. Argo Oil Corp., 7 Terry 102, 82 A.2d 379, held that ignorance of facts, in the ordinary case, is no obstacle to the operation of a statute of limitations.
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