Graves Ice Cream Co. v. Rudolph W. Wurlitzer Co.

• Citation: 267 Ky. 1,100 S.W.2d 819
• Parties: GRAVES ICE CREAM CO. v. RUDOLPH W. WURLITZER CO.
• Decision Date: 15 January 1937
• Court: Court of Appeals of Kentucky

100 S.W.2d 819

267 Ky. 1

GRAVES ICE CREAM CO. v. RUDOLPH W. WURLITZER CO.

Court of Appeals of Kentucky

January 15, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by the Graves Ice Cream Company against the Rudolph W Wurlitzer Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Fisher Barrickman, Watkins & Seidman, of Louisville, for appellant.

Trabue, Doolan, Helm & Helm, of Louisville, for appellee.

THOMAS Justice.

Both appellant, Graves Ice Cream Company, and appellee, Rudolph W. Wurlitzer Company, are corporations. The former was plaintiff and the latter was defendant below, and they will be so referred to in this opinion. Plaintiff by its action filed in the Jefferson circuit court sought to recover from defendant judgment for $1,975 for alleged damages proximately resulting from a breach of an alleged implied warranty made by defendant in the sale to plaintiff of certain machinery to be used in its ice cream manufacturing plant located in the city of Louisville, Ky. There was a written contract for the sale of the machinery by defendant to plaintiff, a copy of which was filed as an exhibit with the petition, and the court sustained demurrers filed to the petition and to it as amended, and plaintiff declining to plead further, its action was dismissed, to reverse which it prosecutes this appeal.

The written contract was made April 22, 1933, and in it defendant sold to plaintiff and agreed to install in its plant, and connect it up with its theretofore installed equipment, a Condensing Unit, which it did, but with the results hereinafter stated. The language embodying defendant's proposition to plaintiff, and which it accepted, was that it (defendant) agreed to furnish or sell to plaintiff and install in its premises one "7 1/2 H. P. Mohawk Condensing Unit connected to the present ammonia coils in your two ice cream hardening rooms and including all necessary expansion valves, ammonia valves, methyl chloride valves, scale traps, and automatic starting switch on your water pump motor, completely installed ready to operate." The terms were that plaintiff should pay defendant upon the installation $145 and execute to it fourteen notes for $85.72 each, payable monthly thereafter. Then followed this language: "This proposal shall become a contract when signed by the Purchaser and accepted by the Seller and when so accepted constitutes a binding contract which covers all agreements and promises expressed or implied between the Purchaser and Seller. Acceptance by the Seller shall be valid only when made in writing on this contract by a duly authorized officer of the Seller." (Our italics.)

On the back thereof there were these express stipulations, excluding signatures: "The Rudolph Wurtlizer Company hereby guarantees the Mohawk Refrigeration Equipment specified on the face hereof to refrigerate your two ice cream hardening rooms to a temperature not higher than minus 5~ F and to harden 700 gallons of ice cream per day under ordinary careful usage. In the event the Mohawk Equipment specified should prove insufficient to meet your refrigeration requirements as qualified above, The Rudolph Wurtlizer Company hereby agrees to install any needed additional Mohawk Refrigerator Equipment without charge to you. If, within 30 days after date of completion of the installation of the Mohawk Equipment specified on the face hereof, the installation of connecting the Mohawk Condensing Unit to the present coils in your hardening rooms should prove unsatisfactory, or if the Mohawk Equipment should fail to meet your refrigeration requirements as qualified above, the Rudolph Wurtlizer Company hereby agrees to remove its equipment and refund all moneys paid to it by you."

The original petition alleged that the purchased Mohawk Condensing Unit from defendant was to be operated with methyl-chloride gas; whilst the old machinery (which that unit substituted in its connection with the necessary coils and other equipment that plaintiff did not agree to substitute) was operated with ammonia and which was known to both parties when the written contract sued on was entered into. It was further averred that the results obtained from the operation of the plant after the installation of the Mohawk Condensing Unit purchased of defendant were not as anticipated or as the contract stipulated, and that within thirty days after the installation defendant was notified but failed to remedy the defects and later disconnected and removed the Condensing Unit from the other equipment of plaintiff and refunded to it the $145 down payment; that it then purchased another unit from another company, but which was operated with ammonia; that defendant negligently connected the Condensing Unit that it sold to plaintiff with the coils and other permanent equipment of plaintiff, and it also was negligent in disconnecting it therefrom, whereby plaintiff was damaged in the sum of $1,400. The remaining portion of the judgment sought was made up of extra items of expense incurred on account of the failure of the purchased Condensing Unit to operate.

The alleged negligence so relied on consisted in these facts: That the methyl-chloride gas to be used in connection with the operation of the Mohawk Condensing Unit was allowed to become mixed with the remnants of ammonia in plaintiff's coils (with which defendant had nothing to do under its contract) and to thereby, by chemical operation, produce a consolidated or thickened mixture that obstructed the valves in the coils and which should be cleaned out before successful operation could be obtained, and such condition was charged to have resulted from defendant's negligence, which is another method for charging that it failed to perform a duty that it owed to plaintiff.

It will be observed that plaintiff relies on an implied warranty that the machinery sold to plaintiff by defendant was suitable for the purpose for which it was purchased, and which proposition of law, in the abstract, is universally upheld and enforced; but long before the enactment of our Uniform Sales Act in 1928 (now section 2651b-1 to and including 2651b-78 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes), the principle was approved by courts that it was competent for the parties to expressly stipulate against an implied warranty, and to confine their obligations to the specific terms of the contract if they saw proper, but which confining stipulation should be plainly expressed. Our Uniform Sales Act legislates upon the entire field of sales of personal property including situations such as are here presented, and its provisions necessarily supersede any declaration that may have been made by us or any other ...