Harnischfeger Sales Corporation v. Sternberg Co., Inc.

• Decision Date: 26 November 1934
• Docket Number: 32609
• Citation: 180 La. 1059,158 So. 556
• Court: Louisiana Supreme Court
• Parties: HARNISCHFEGER SALES CORPORATION v. STERNBERG CO., Inc

158 So. 556

180 La. 1059

HARNISCHFEGER SALES CORPORATION v. STERNBERG CO., Inc

No. 32609

Supreme Court of Louisiana

November 26, 1934

Rehearing Denied January 7, 1935

Appeal from Sixth Judicial District Court, Parish of East Carroll F. X. Ransdell, Judge.

Action by Harnischfeger Sales Corporation against Sternberg Company Incorporated. From an adverse judgment, defendant appeals.

Reversed and remanded, with directions.

O'Niell & O'Niell, of New Orleans, for appellant.

Theus, Grisham, Davis & Leigh, of Monroe, for appellee,

LAND Justice. O'NIELL, C. J., is recused.

OPINION

LAND, Justice.

This is a suit for payment for repairs and machinery parts furnished on two dragline machines owned by defendant. The two machines were purchased from the plaintiff. The defendant admits owing the plaintiff $ 1,037.76, representing the parts furnished on the older machine, but denies owing the balance, which represents repairs and replacement parts on the machine which had been purchased less than a year before the parts were furnished.

The warranty relied on as a defense to this suit for machinery parts is specifically embodied in the written contract of sale.

In the third paragraph of the written contract, it is provided that: "We (the seller) guarantee every part of the machinery, tools or equipment covered by this proposal to be of proper materials and first-class workmanship, and agree to furnish, without charge, f. o. b. cars, Milwaukee, Wisconsin, any part or parts which may prove defective under normal and proper use. * * *" (Italics ours.)

This is the warranty referred to in the thirteenth paragraph of defendant's answer to this suit, where it is averred "that, at the time and as a part of the consideration of said sale and purchase, plaintiff represented and warranted to respondent that the said dragline machine was properly constructed, of good and sufficient and workmanlike materials, and capable of performing the work for which same was purchased; whereas, as a matter of fact, the material in and workmanship on the said dragline machine were defective, in that parts thereof broke down and failed to function, causing great damage and delay to respondent." (Italics ours.)

The defense to the first suit for the purchase price of the machine was that plaintiff had breached its verbal warranty of the capacity of the machine; and it was held that evidence of such verbal warranty was inadmissible, being violative of the parol evidence rule. Harnischfeger Sale Corporation v. Sternberg Company, Inc., 179 La. 317, 154 So. 10.

When the present case was called for trial, the plaintiff offered the parts account in evidence and rested. Then, before the defendant had an opportunity to offer any evidence, the plaintiff filed a "plea of estoppel," which was immediately sustained and judgment was rendered for plaintiff as prayed for, in the sum of $ 4,301.50.

The plea of estoppel seems to be based upon the bare fact that, in the prior suit for the price of the machine, the defendant offered in evidence a parts account in the sum of $ 3,223.12. The parts account, however, was offered by the defendant simply to show the excessive breakage of parts and, therefore, as evidence of the unfitness of the machine, and not as an admission that the defendant owed the debt.

While mention was made, in argument before this court, that the parts account should be considered also, in determining the reduction in price in the former suit, the important fact is that the contention was made unsuccessfully.

"The fact of having ineffectually urged an erroneous legal proposition cannot serve as the basis of an estoppel." Sandoz v. Sanders, 125 La. 396, 51 So. 436, 438....