Green Mountain Mushroom Co. v. Brown

• Decision Date: 03 February 1953
• Docket Number: No. 153,153
• Citation: 95 A.2d 679,117 Vt. 509
• Parties: GREEN MOUNTAIN MUSHROOM CO., Inc. v. BROWN et al.
• Court: Vermont Supreme Court

Page 679

95 A.2d 679

117 Vt. 509

GREEN MOUNTAIN MUSHROOM CO., Inc. v. BROWN et al.

No. 153.

Supreme Court of Vermont.

Feb. 3, 1953.

Osmer C. Fitts and Philip H. Suter, Brattleboro, for plaintiff.

James B. Campbell, Manchester, Lawrence & O'Brien, Rutland, for defendants.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

CUSHING, Justice.

This is an action in contract for recovery of damages to a building and loss of crops and profits due to an alleged breach of an implied warranty of fitness of a roofing cement used in the construction of plaintiff's mushroom growing building. Trial was by jury which resulted in a verdict for the plaintiff. Plaintiff moved for judgment on the verdict. Defendant moved to have the verdict set aside and for judgment notwithstanding the verdict. This motion was granted and judgment entered for the defendant, with exceptions to the plaintiff.

The cause is before this Court on plaintiff's exception to the court's setting aside the verdict and granting judgment for the defendant, n.o.v. and on defendant's exceptions to the court's charge, failure to charge as requested, and to the admission of certain evidence.

Viewing the evidence in the light most favorable for the plaintiff, as we must on defendant's motion to set aside the verdict and for judgment n.o.v. Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481-499, 1 A.2d 817; Farrell v. Greene, 110 Vt. 87, 89, 2 A.2d 194, the jury could have found the following facts.

The plaintiff is a Vermont corporation engaged in the growing of mushrooms in Manchester. The defendants are partners doing business as Brown and Hitchcock in Manchester, engaged in the business of selling building supplies. In January 1950 the plaintiff started the construction of a mushroom growing plant. During the period of construction Mr. Jennings, president and treasurer of the corporation, discussed with the defendants the matter of the materials to be used. After independent study the corporation decided on Reynold Rey-Kool roofing as the material to be applied to the roofs of its buildings and procured it through the defendants. It was purchased by its trade name Rey-Kool.

In order to apply the roofing an adherent was necessary. Mr. Jennings told Mr. Brown or Mr. Hitchcock the kind of a building the corporation was erecting: that it would accepted 60 rolls of Rey-Kool roofing 'along with the proper materials with which to apply it,' to be delivered when ready for the application; that at no time was it ever suggested by him that Barrett S. I. S. roofing cement should be delivered.

Mr. Ostrander, the corporation's manager, informed Mr. Brown that a cement would be necessary and wanted to know what they carried for half lap roofing; that Brown told him that the most common type used was Barrett S. I. S.; that there were other types, that there was a plastic cement which could be troweled on or the S. I. S. and in his opinion from what he knew of half lap roofs that the S. I. S. cement would be the one to use; that he knew the purpose for which the cement was to be used, that Mr. Ostrander asked what Brown thought ought to be used, that Brown's opinion was that it would do the job they wanted done. Mr. Ostrander gave an order for the material suggested and that he did not ask for it under the name S. I. S.; that Brown suggested it was a good product to use and a proper one. Barrett S. I. S. cement was not a proper cement to use on Rey-Kool roofing, but that the adherent should have been hot asphalt.

The roofing was completed about the 16th of June. Sometime in early September it was noticed that the aluminum lamination on the Rey-Kool was beginning to peel from the asphalt backing and some pieces had blown away, that the roof continued to peel all over. As a result there was continual leakage into the building which resulted in the damaging of the insulation of the sidewalls, and the grey-lite boards on the ceilings and roof. The leakage damaged the growing crop of mushrooms to such an extent that the bins in which they were cultivated had to be emptied and the crop destroyed, that production was diminished because of the water and moisture from the leaking roof, and the development of certain diseases affecting the mushrooms.

The question presented by plaintiff's exception is, was the sale of Barrett's S. I. S. cement under an implied warranty of fitness?

Subdivisions I and IV of V.S.1947, § 7868, Uniform Sales Act, read as follows:

'I. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose;

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'IV. In the case of a contract to sell or a sale of a specified article under its patent or other trade name there is no implied warranty as to its fitness for any particular purpose'.

Plaintiff's contention is that the sale of the S. I. S. cement falls within the provisions of subdivision I of § 7868 whereas defendant claims that it falls within the provisions of subdivision IV.

V.S.1947, § 7927 reads as follows:

'This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the laws of those states which enact it.'

In view of this section decisions of the highest courts in other states having adopted the Uniform Sales Act, involving its interpretation or construction, are precedents by which we are more or less imperatively bound in cases where similar questions are presented. Aetna Chemical Co. v. Spaulding & Kimball Co., 98 Vt. 51, 59, 126 A. 582; Breding v. Champlain Marine & Realty Co., 106 Vt. 288, 300, 172 A. 625.

The implied warranty of fitness is not founded on negligence. Ireland v. Louis K. Liggett Co., 243 Mass. 243, 137 N.E. 371.

The raising of an implied warranty of fitness depends upon whether the buyer informed the seller of the circumstances and conditions which necessitated his purchase of a certain character of article or material and left it to the seller to select the particular kind and quality of article suitable for the buyer's use. This is the rule regardless of whether the case is governed by the common law or the Uniform Sales Act, except that under the Uniform Sales Act a dealer is placed under the same responsibility as a manufacturer and the term 'trade mark' or 'trade name' is used, rather than the term 'specified, described article.' So when the buyer orders goods to be supplied and trusts to the judgment or skill of the seller to select goods or material for which they are ordered, there is an implied warranty that they shall be reasonably fit for that purpose. Davenport Ladder Co. v. Edward Hines Lumber Co., 8 Cir., 43 F.2d 63; George E. Pew Co. v. Karley & Titsenor, 168 Iowa 170, 150 N.W. 12, 13, was an action to recover the purchase price of an electric generator installed by plaintiff in defendant's place of business for the purpose of operating a motion picture theater. The generator failed to produce adequate electricity to operate the machines and illuminate the premises. In affirming the lower court's judgment for the defendant the court says:

'if [a person] goes to the manufacturer or dealer describing the kind of work to be done or the result he desires to accomplish, and * * * dealer professes to be able to supply an engine or machinery which will do it, and the buyer is thereby induced to give him an order therefor, then there is a warranty that the * * * thing so furnished is reasonably adapted to the work for which it is procured, even though the order particularly defines and describes it.'

Sachter v. Gulf Refining Co., Sup., 203 N.Y.S. 769, is a case very much in point. According to the proof adduced by plaintiff, a representative of plaintiff was advised by defendants' salesman, when plaintiff required oil for its refrigerating plant, to order of defendant Choctaw oil. Thereafter plaintiff's representative stated to defendants' manager that defendants' salesman had told plaintiff's representative that the kind of oil for plaintiff to use was Choctaw oil, and defendant's manager told plaintiff to order it. It was accordingly ordered and after being used was found to be unfit for the purposes required. While the sale of the oil was under a trade name it appears that this was done at the instance of defendant's salesman, who answered plaintiff's representative about the fitness of the oil for the purposes required by plaintiff. The buyer relied, not upon the trade name, but upon the statement of the seller's representative, which was communicated to defendant's manager. The examination of plaintiff's plant by defendants' representative, and the advice given to plaintiff that Choctaw oil was the oil to use, and the statement by plaintiff's representative to defendants' manager that defendants' salesman had told plaintiff's representative that Choctaw oil was the oil to use, and the manager's statement to plaintiffs' representative that plaintiff should order that kind of oil, indicates that plaintiff made known to defendant the purpose for which the oil was required, and that the plaintiff relied on defendants' skill with reference to the use of the oil. Thus there was an implied warranty that the oil should be reasonably fit for such purposes.

The rule of implied warranty of fitness was a part of our common law long before the enactment of the Uniform Sales Act. In Wing v. Chapman, 49 Vt. 33, 35, the principle was enunciated and applied. The Court said:

'Even without any express warranty in this class of contracts, the law has now become pretty well settled, that where the special purpose of the buyer is made known to the seller, and the seller, with such knowledge, delivers the goods, the law implies that they are reasonably fit for the...