Hepp Bros., Inc. v. Evans

• Decision Date: 15 November 1966
• Docket Number: No. 41428,41428
• Citation: 420 P.2d 477
• Parties: HEPP BROTHERS, INC., an Oklahoma Corporation, Plaintiff in Error, v. Charles EVANS and Joyce Evans, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 477

420 P.2d 477

1966 OK 230

HEPP BROTHERS, INC., an Oklahoma Corporation, Plaintiff in Error, v. Charles EVANS and Joyce Evans, Defendants in Error.

No. 41428.

Supreme Court of Oklahoma.

Nov. 15, 1966.

Syllabus by the Court

1. Where, in an action of legal cognizance, trial by jury is waived, and, at the close of plaintiffs' evidence defendant interposes a general demurrer to it, and after said demurrer is overruled, other evidence is introduced and the cause is submitted to the trial court for judgment without any challenge to the sufficiency of the evidence as a whole, said court's judgment will be affirmed on appeal, if there is any competent evidence reasonably tending to support it.

2. Evidence examined and held sufficient, under the above rule, to support plaintiffs' judgment for damages for breach of implied warranty of suitability and fitness.

3. If a warranty relates to a future event, before which the defect cannot be discovered with reasonable diligence, the warranty is prospective in character and the applicable period of limitations runs from the time of that event.

Appeal from the Court of Common Pleas of Oklahoma County; Dwain D. Box, Trial Judge.

Action by the owners of a residence for damages for breach of warranty, against the vendor and installer of tile floor covering in said residence. After trial by the court without a jury, judgment for plaintiffs and the overruling of defendant's motion for a new trial, the latter appealed. Affirmed.

Tom S. Williams, Charles E. Dierker, Oklahoma City, for plaintiff in error.

William H. Henderson, Oklahoma City, for defendants in error.

BLACKBIRD, Justice.

This appeal involves an action for damages in the amount of $581.88 for breach of warranty on a floor covering consisting of Kentile 'Pearl Inlaid' vinyl tile squares, or blocks, plaintiff in error, hereinafter referred to as defendant, sold and installed during August or September, 1960, in the kitchen and den of a new home being built in southern Oklahoma City for the defendants in error, hereinafter referred to either by name or as plaintiffs.

Plaintiffs did not file their petition in this action until August 29, 1963, but they alleged therein, among other things, that '* * * the tile blocks commenced 'popping loose' from the floor * * *' in June, 1962, 'and thereafter all of the aforesaid tile blocks came loose from the floor.'

In defendant's answer, it plead that the action was barred by the three-year limitation period prescribed for expressed, or implied, contracts 'not in writing', by Tit. 12 O.S.1961, sec. 95 'Second'. Defendant's answer also contained a general denial and the following more specific allegations:

'* * * defendant states that if the tile sold did not adhere there was no warranty, expressed or implied, that it would adhere to the floor longer than a reasonable time, which would in no event exceed one year from the time it was laid.

'For further answer defendant states that if the tile floor did not adhere the cause was the fault of plaintiffs in not providing and maintaining a proper surface under said tile.

'* * *.'

At the pre-trial conference, the parties waived trial by jury. At the subsequent trial before the court, after plaintiffs had introduced their evidence, defendant demurred thereto, but did not challenge the sufficiency of the evidence as a whole at the close of the trial and before the cause was submitted to the court for judgment. Thereafter, the court rendered judgment in plaintiffs' favor in the amount sued for, with interest and costs. In said judgment, the court made the following finding, among others:

'And the court being fully advised, on consideration, finds that the defense of the statute of limitations is not applicable because it did not run from the time the material was installed, but ran from the time the defects therein were discovered by the plaintiffs, * * *

'* * *.'

After the overruling of defendant's motion for a new trial, it perfected the present appeal.

All of defendant's arguments for reversal are advanced under the following propositions:

I 'The statute of limitations had run on * * * (Plaintiffs') claim.

II 'There was no evidence to support the conclusion of the trial court that defendant breached an implied warranty with reference to the tile.'

After examining the record in the light of defendant's arguments under its Proposition II, we observe that the only issue of fact preserved in the trial court, and submitted to this court in said Proposition, does not invoke a weighing of the evidence since defendant failed to challenge its sufficiency, as a whole, before the cause was submitted to the trial court for judgment. As said in Gentry v. Smith, Okl., 373 P.2d 71, 74:

'* * *

'When such a situation exists in an action of legal cognizance that is triable by a jury, but where jury trial has been waived, the trial court's judgment, as to issues of fact, is affirmed if there is any competent evidence reasonably tending to support it. * * *.'

And, in determining whether such a judgment has the quantum of support prescribed by the above quoted rule, we must take into consideration 'every reasonable inference deducible' from the competent evidence reasonably tending to support it. Burke v. Bennett Drilling Co., Okl., 371 P.2d 477.

Before dealing with the arguments, in the light of the above cited rule, it is appropriate to set forth some of the undisputed facts which form the background of this controversy, and some of the evidence introduced at the trial.

According to the evidence, before plaintiffs' new home's construction reached the stage that it was ready for selection of floor covering for its kitchen and den floors, Mr. Malear, the 'builder' or contractor on the job, suggested to plaintiffs that the defendant company be contacted for such covering. Pursuant to this suggestion and/or recommendation, plaintiffs went to defendant's place of business in early August, 1960, and consulted Mr. William Burl Hepp, defendant's president and 'active manager', concerning the matter. Upon Mr. Hepp's statement that it has a 'lifetime guarantee', was the 'best' one defendant handled, 'was as good as anybody's', and that he would recommend it 'to put on any floor', plaintiffs selected the Kentile 'Pearl Inlaid' vinyl tile, and Hepp agreed to install it in the kitchen and den of their new home for a total price, whose amount would depend upon the size of those rooms and the number of tile squares, or blocks, needed to cover their floors. Thereafter, defendant engaged a Mr. Verlon Whaley to install the tile, and Mr. Whaley went to plaintiffs' new home for the purpose of measuring the two rooms' floors and making preparation for the tile's installation there. On Whaley's first visit to the construction site, he found that the concrete slab floor, upon which the vinyl tile was to be laid, had a hump, or raised place, in it. Whaley reported this to Mr. Hepp and apprised him that, in order for the tiled floor to 'look right' when completed, he was causing the builder to sand down this high place on the concrete. Thereafter, when Whaley had returned to the new home to see that the floor had been leveled satisfactorily, he arranged to lay the tile on a week end, a few days later. During the time that elapsed between his said inspection of the concrete floor and his installation of the tile theron, Whaley returned to defendant's store, picked up the tile and paste, cement, or adhesive, that defendant had for the job, and completed installation of the tile on schedule. Thereafter, Mr. Hepp telephoned plaintiffs to verify the fact that Whaley had completed the job, obtained their acceptance of it, paid Whaley $150.00 out of defendant's funds for the labor involved, thereafter billed plaintiffs in the lump sum of $581.88 for the completed job, and plaintiffs remitted that amount to defendant, in full payment, about the middle of September, 1960.

Thereafter, in June, 1962, plaintiffs noticed that the tile was beginning to come loose in various places where it had been laid and Mr. Hepp was apprised of this by telephone. On behalf of defendant, Mr. Hepp denied responsibility for the tile's coming loose, and told plaintiffs that it was Mr. Whaley's fault. Plaintiffs then contacted Mr. Whaley and he told them it was the tile's fault. Thereafter, plaintiffs contacted a Mr. Trappe, who came to their home and replaced the loose tile blocks by cementing, in their place,...