Glen Alden Corp. v. Duvall
| Decision Date | 17 November 1965 |
| Docket Number | No. 217,217 |
| Citation | 240 Md. 405,215 A.2d 155 |
| Parties | GLEN ALDEN CORPORATION et al. v. R. Byng DUVALL, t/a Duvall Engineering Company. |
| Court | Maryland Court of Appeals |
Stedman Prescott, Jr., Silver Spring; on reargument Stedman Prescott, Jr., Silver Spring, for appellants.
John P. Moore, Silver Spring (Wheeler, Moore & Korpeck, Silver Spring, on the brief); on reargument John P. Moore and Wheeler, Moore & Korpeck, Silver Spring, for appellees.
Argued May 6, 1965 before HORNEY, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.
Submitted Nov. 12, 1965 to HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ., and MATTHEW S. EVANS, Special Judge.
The appellee, R. Byng Duvall, operating Duvall Engineering Company (Duvall) as a sole proprietorship, filed an action at law against Glen Alden Corporation (Glen Alden) and its subsidiary corporation Republic-Transcon Industries, Inc. and Republic Air Conditioning Co. in the Circuit Court for Montgomery County on August 21, 1961. The declaration included the seven common counts in assumpsit and one special count in which recovery of $110, 153.83 with interest from January, 1960 and costs was sought resulting from the alleged breach of contract between Duvall and The Mathes Company (Mathes), a subsidiary of Glen Alden, whose assets were subsequently acquired by Republic Air Conditioning Co., (Republic). On November 26, 1962, Republic filed an action at law in the same court against Duvall in two counts in addition to the seven common counts, to recover in count 1, $10,099.55, the principal balance allegedly due on 16 promissory notes from Duvall to Mathes and assigned by Mathes to Republic, together with 6% interest of $928.30 from December 31, 1961 and attorneys' fees of $1550.80 provided for in the notes and to recover in count 2 for a balance of $1,682.32 on an open account with interest of $84.00 from December 31, 1961. In the exhibits attached to the declaration it appeared that the original note account was for $18,567.18 from which was deducted $8,467.63 consisting of the alleged market value of various air conditioning units recovered from the custody of the Sheriff of $11,911.20 less the costs of $3,443.57 involved in an attachment on original process issued by Duvall but later quashed by Judge Shure on June 21, 1962. In both actions, the defendants filed the general issue pleas in assumpsit.
The two cases were consolidated for trial and tried before Judge Shure, sitting without a jury. After much testimony and the introduction of a number of documentary exhibits, Judge Shure, after argument of counsel, filed an opinion and directed the entry of judgment for Duvall against Glen Alden and Republic for $27,735.00. It is from the judgment for this amount that the present appeal was taken by Glen Alden and Republic. There was no cross appeal by Duvall.
For convenience in the later consideration of the case we will indicate the particular claims alleged in Duvall's declaration and the allowances (or disallowances) made by the lower court on those claims:
Duvall's claims Result in lower court
--------------- ---------------------
Nature of claim Amount claimed
--------------- --------------
Freight on return in-warranty parts $ 990.52 Disallowed
Unpaid claims for labor allowances for
in-warranty repairs 2,890.48 $ 1,445.00
Unpaid amounts for in-warranty parts
returned to Mathes 13,079.63 6,540.00
Rent on warehouse housing equipment 2,430.00 3,000.00
Interest and insurance charges on warehouse
equipment 2,083.12 Disallowed
20% down payment on equipment 4,287.13 4,287.13
Bonded warehouseman's salary 4,427.95 Disallowed
*Value of unexpired five year warranty 79,965.00 Disallowed
--------------
$110,153.83
*Allowed by trial court:
Additional credit allowed on
returned equipment 14,321.04
----------
29,593.17
Credit for attachment and
repossession costs 3,427.47
----------
26,165.70
Interest at 6% on balance 1,569.30
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Judgment for $27,735.00 Duvall had entered the building, heating and air conditioning business in Montgomery County after the conclusion of World War II. In the latter part of 1957 he became interested in the air conditioning and heating equipment for Mathes. Mathes at that time had its factory at Fort Worth, Texas and had a local representative, a Mr. Morton.
Duvall's original conversations were with Curtis Mathes, president of Mathes. Duvall visited the Mathes plant at Fort Worth and became familiar with its installation. Mathes had a warehousing subsidiary, the Maco Corporation (Maco) which had two warehouses in Montgomery County, one on Elkins Street in Wheaton and the other on Howard Avenue in Kensington. The Howard Avenue warehouse, of masonry construction 20 feet by 70 feet, was owned by Duvall. Maco and Duvall entered into a written warehousing contract, lease and unconditional guaranty by Duvall on November 19, 1957. The agreement provided for a non-recurring fee to the warehouseman (Maco) and for branch warehouse charges of 1/10 of 1% of the stated value of the commodities stored. There was a minimum annual storage charge of $100.00. Insurance charges were payable in advance as invoiced. The agreement was for 3 years from November 19, 1957, with a provision for subsequent 3 year renewals unless either party terminated upon 90 days' written notice prior to the end of the 3 year period. The lease, however, provided for a term from year to year with a rental of $1.00, with the right of either party to terminate upon 30 days' written notice with appropriate provisions to protect existing warehouse receipts. The unconditional guaranty by Duvall indemnified Maco against loss resulting from the fraudulent or dishonest acts of any employees or agents of Duvall in connection with the warehousing agreement and lease. There was an oral agreement between Mathes and Duvall whereby Duvall became an 'Associate Manufacturer' of Mathes and which provided that Duvall would supply a warehouse in Montgomery County (which was accomplished by the documents of November 19, 1957); that Duvall's purchase terms for Mathes equipment would be subject to the customary discounts and would be paid for by a down-payment of 10% in cash and a promissory note or notes for the 90% balance. Mathes would prepay the freight from its plant to the warehouse in carload lots. Payment was made by Duvall at the time of receipt of the equipment from the warehouse for sale or installation. He would pay the warehouseman for such equipment in cash and the warehouseman would then send the funds to Mathes to be applied against the promissory note or notes theretofore given by Duvall. The Mathes air conditioning equipment was sold under a written two-fold warranty. The first part of the warranty was entitled 'One Year Complete Air Conditioning Warranty' (One Year Warranty) and warranted to the original purchaser that the described Mathes Air Conditioner would be 'free from defects in material and workmanship under normal use and service for a period of one year from the date of installation.' It further provided that Mathes' obligation under the One Year Warranty 'shall be limited to furnishing, free of charge, F.O.B. factory, to the original purchaser a replacement part or parts of like or similar design and capacity in exchange for return to Mathes factory, freight collect, any part or parts of the Air Conditioner that in Mathes' judgment show evidence of defect in material or workmanship.' The Five Year Warranty provided that, in addition to the One Year Warranty, Mathes warranted to the original purchaser as follows:
The two warranties are declared to be in lieu of any other warranties express or implied, are limited to the continental United States and only apply if the enclosed Registration of Warranty Card is mailed within 30 days after installation.
At the bottom of the warranty there is a provision for 'Associate Manufacturer Warranty' which provides in effect that the Associate Manufacturer (who signs the warranty at the bottom of the document) gives an additional warranty as that of Mathes, and provides that:
'[I]n addition it is understood that associate manufacturer's obligation under this warranty is limited to the actual removal, reinstallation, repair and/or replacement of the Refrigerant System or a part thereof at the point of installation without cost to the purchaser, and the associate manufacturer does not authorize anyone else to remove, repair, or replace this refrigerant system or incur any cost in connection therewith.'
It was also provided that Mathes assumed no liability under the warranty unless the Associate Manufacturer signed the warranty in the place provided for his signature.
The controlling interest in The Mathes Company was acquired by Glen Alden as of January 1, 1958. Thereafter, Duvall and John J. Hildebridle, who was then the president of Mathes, had...
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