General Supply & Equipment Co., Inc. v. Phillips, 650

• Decision Date: 28 December 1972
• Docket Number: No. 650,650
• Citation: 12 UCCRep.Serv. 35,490 S.W.2d 913
• Parties: 12 UCC Rep.Serv. 35 GENERAL SUPPLY AND EQUIPMENT COMPANY, INC., Appellant, v. Harry S. PHILLIPS, Appellee.
• Court: Texas Court of Appeals

Page 913

490 S.W.2d 913

12 UCC Rep.Serv. 35

GENERAL SUPPLY AND EQUIPMENT COMPANY, INC., Appellant, v. Harry S. PHILLIPS, Appellee.

No. 650.

Court of Civil Appeals of Texas,

Tyler.

Dec. 28, 1972.

Rehearing Denied Feb. 22, 1973.

Ardon E. Moore, Jr., Tyler, for appellant.

Charles H. Clark, Tyler, for appellee.

MOORE, Justice.

Appellee, Harry S. Phillips, brought this suit for damages against appellant, General Supply and Equipment Company, Inc., for breach of express warranty; breach of implied warranty of fitness for a particular purpose; and breach of implied warranty of merchantability relating to certain plastic paneling, called 'P.V.C. paneling,' sold by General Supply and Equipment Company, Inc., to Harry S. Phillips for roofing material to cover four greenhouses. Appellee alleged that the paneling was warranted to last for a period of five to seven years; that within three years after sale the paneling darkened to such an extent that sunlight in sufficient quantities could not enter into the greenhouses, resulting in the loss of plants as well as the destruction of Phillip's greenhouse business. Appellant denied the allegations generally and alleged that if any warranty existed the warranty was excluded or modified either expressly or by the course of dealing between the parties. Trial was before a jury. In response to the special issues, the jury found that an express warranty, an implied warranty of fitness for a particular purpose, and an implied warranty of merchantability were made by appellant, and that there was a breach of such warranties proximately resulting in damages to appellee. The trial court rendered judgment on the verdict awarding appellee damages in the sum of $176,067.53. Appellant duly perfected this appeal.

The jury, in response to the special issues, made the following findings: (1) that General Supply and Equipment Co. made an affirmation of fact and promise to plaintiff relating to the goods; (2) that such became a part of the basis of the agreement; (3) that plaintiff relied upon representations of defendant in making the purchase; (4) that the goods sold to plaintiff failed to comply with affirmations and promises made by defendant; (5) that because of such failure plaintiff was injured; (6) such failure was proximate cause of the injury suffered by plaintiff; (7) that the goods sold failed to meet certain enumerated requirements as to merchantability; (8) that plaintiff was financially injured because of such failure; (9) that such failure was the proximate cause of financial injury suffered by plaintiff; (10) that plaintiff purchased the goods to be used for purpose of covering his greenhouse; (11) that defendant knew or should have known of the particular purpose for which plaintiff purchased the goods; (12) that defendant knew or should have known plaintiff was relying on defendant's skill or judgment to furnish suitable goods; (13) that plaintiff purchased the goods in reliance on defendant's judgment or skill to furnish suitable goods; (14) that such goods were not suitable for their intended use or purpose; (15) that because of unsuitability of goods plaintiff suffered financial injury; (16) that the unsuitability of goods was proximate cause of plaintiff's injury; (17) that the statement and representations were not merely affirmations of the value of the goods, or statements of opinion or commendation of the goods; (18) that the cash market value of the greenhouses immediately prior to the sale of said greenhouses, had the P.V.C. paneling been fit for its intended use was $85,000.00; (19) that the cash market value of the greenhouses at the time of the sale of the said greenhouses as they existed at the time of their sale was $12,678.00. Special Issue No. 20, together with the jury's answers was as follows: What sum of money, if paid in cash, would fairly and reasonably compensate plaintiff for his financial injury resulting to him from his purchase of the paneling. (a) installation of P.V.C. panels, $16,305; (b) replacement of P.V.C. panels, $10,385.00; and (c) actual business loss, including loss of profits, $145,322.00.

Appellant, General Supply and Equipment Company, Inc., was engaged in the business of selling greenhouse covering products, known as P.V.C. panels or polyvinyl-chloride. Appellee, Harry S. Phillips, owned and operated four large greenhouses in Smith County, Texas, and was engaged in the business of growing and selling plants, but was principally in the business of growing 'mums' (chrysanthemum). The appellant mailed out certain advertising material to greenhouse owners to promote sales of its P.V.C. paneling product. The advertising material invited inquiries concerning P.V.C. paneling. Phillips received some of the material containing the following statements:

'How are you planning to cover your plants this year . . . with single season polyethylene . . . two or three season P.V.C. soft ag film . . . Or five to seven year rigid corrugated PVC panels?' (Emphasis supplied.)

'Finest Quality--Import PVC Rigid Plastic Panels from World-Famous Mitsubishi, 1 1/4 and 2 1/2 Corrugations, 26 , 28 wide 8 , 10 , 12 long. Tests show no deteriaration (sic) in 5 years of normal use.' (Emphasis supplied.)

'Because of the tremendous increase in the use of P.V.C. Panels and Film, and the uncertainty of shipping schedules in the Far East, we must know your requirements for summer and fall construction now to guarantee delivery. From Japan . . . a land where floral and agricultural growing skills are legendary . . . comes a modern material that meets all requirements of greenhouse construction . .. perfectly. Light in weight, easy to handle, easy to work. It's tough and virtually indestructible; provides maximum protection. And its light stability is exceptional. It won't turn black or discolor . . . even after years of exposure.' (Emphasis supplied.)

Another advertisement from the appellant stated its P.V.C. paneling would 'not burn, rot, rust or mildew.'

After numerous conversations, a representative of appellant traveled to appellee's place of business offering construction and operation suggestions and thereafter appellee purchased the P.V.C. paneling. It is undisputed that the paneling darkened and turned black within a period of approximately two years after it was installed on the greenhouses. As a result the 'mums failed to grow and the blooms failed to mature, thereby causing appellee substantial damages.

The primary question presented by appellant's points one through seven is whether appellant made any affirmations of fact or promises to appellee relating to the paneling amounting to an express warranty or whether the representations were merely appellant's opinion or commendation of the goods and the value thereof. In this connection appellant urges that there is no evidence to support the jury's finding of an express warranty (Special Issue No. 1) and that the jury's finding that the statements made by appellant were not mere statements of opinion (Special Issue No. 17) is against the overwhelming weight and preponderance of the evidence. The points appear to be without merit and are overruled.

Sec. 2.313 of the Texas Business and Commerce Code (U.C.C.), V.A.T.S., provides that '* * * any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain * * *' is an express warranty. To recover money damages under the theory of express warranty in Texas, one must prove: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods; (2) such affirmation of fact or promise became a part of the basis of the bargain; (3) that the injured party, in making the purchase, relied on the representations, affirmations of fact or promises; (4) that the goods sold by the seller failed to comply with the promises or affirmations of fact made by the seller; (5) that the buyer, because of such failure, was financially injured; and (6) that such failure to comply was a proximate cause of the financial injury suffered by the buyer. See Sec. 2.313, Texas Business and Commerce Code and the Uniform Commercial Code Comment following Sec. 2.313. Also see 17 A.L.R.3rd 1010.

The test for whether a given representation is a 'warranty' or a mere expression of opinion is: did the seller assume to assert a fact of which the buyer is ignorant, or did he merely express a judgment about a thing as to which they may each be expected to have an opinion. Wedding v. Duncan, 310 Ky. 374, 220 S.W.2d 564 (1969).

As we view the record, the appellant made more than one affirmation of fact to appellee relating to the quality of the panels: (1) that 'tests show no deterioration in 5 years of normal use,' (2) 'It won't turn black or discolor . . . even after years of exposure,' and (3) it 'will not burn, rot, rust or mildew.' The record shows that appellee had no knowledge of any of these facts. It is without dispute that the panels commenced turning dark after about two years' use causing a diminution of light in the greenhouses.

Whether the retailer or his agent affirmed a fact or made a promise concerning the product amounting to a warranty is usually a question of fact for the jury. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.Ed.2d 847 (1950); Miller v. Economy Hog and Cattle Powder Co., 228 Iowa 626, 293 N.W. 4 (1940); Van Antwerp-Aldridge Co. v. Schwarz, 263 Ala. 207, 82 So.2d 209 (1955); Compton v. M. O'Neil Co., 101 Ohio App. 478, 139 N.E.2d 635 (1955). When viewed in a light most favorable to the verdict, we think the jury's answer to Special Issue No. 1 is amply supported by the evidence. After a careful review of all the evidence we find that we are unable to agree with appellant's contention that the statements and representations of appellant amounted to nothing more than a mere expression of opinion. Consequently we cannot agree with appellant's contention that ...