Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand & Gravel, Inc.

• Decision Date: 21 May 1962
• Docket Number: HEWITT-ROBIN,No. 6869,INC,6869
• Citation: 1962 NMSC 65,70 N.M. 144,371 P.2d 795
• Parties: , ROBINS CONVEYORS DIVISION, and Union Industrial Corporation, Inc., a corporation, Plaintiffs-Appellees, v. LEA COUNTY SAND AND GRAVEL, INC., a corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 795

371 P.2d 795

70 N.M. 144

HEWITT-ROBINS, INC., ROBINS CONVEYORS DIVISION, and Union

Industrial Corporation, Inc., a corporation, Plaintiffs-Appellees, v. LEA COUNTY SAND AND GRAVEL, INC., a corporation,

Defendant-Appellant.

No. 6869.

Supreme Court of New Mexico.

May 21, 1962.

W. D. Girand, Lowell Stout, Hobbs, for appellant.

Stagner, Sage, Walker Estill, Carlsbad, for Union Industrial Corp.

L. George Schubert, Hobbs, for Hewitt-Robins, Inc.

CARMODY, Justice.

Lea County Sand and Gravel, Inc. appeals from the granting of summary judgments in two cases, which were consolidated for trial and for appeal.

The sole question is whether there existed controverted issues of material fact in either or both of the cases. We will attempt to untangle the legal and factual issues which arose because of the somewhat complicated facts and the filing of two independent cases. Both cases are based upon the same circumstances and so interrelated that it is only proper that they were and are consolidated.

The original case was by Hewitt-Robins, Inc., Robins Conveyors Division, hereafter called 'Hewitt-Robins,' against Lea County Sand and Gravel, Inc., which will be termed the 'Gravel Company, for the purchase price of a sand and gravel grading screen, valued at slightly less than $6,000.00. The Gravel Company, in its answer, admitted its liability, but denied any indebtedness, and counterclaimed for damages on the general basis of breach of warranty relating to another grading screen, which, it was claimed, was purchased from Hewitt-Robins some months earlier. Hewitt-Robins answered the counterclaim, alleging, in addition to general denials, that there was no privity of contract between the parties as to the first screen. The Gravel Company thereupon sued Union Industrial Corporation, Inc., which we will refer to as 'Union,' for the same damage set forth in the above-mentioned counterclaim, alleging sale of the screen by Union to the Gravel Company and breach of warranty for failure of the screen to properly perform as agreed. Union, in its answer, claimed that the sale was made not by it but by Hewitt-Robins, and that the warranties were made by the representatives of Hewitt-Robins, not by Union. Union also brought Hewitt-Robins into the case as a third-party defendant, seeking reimbursement in the event of recovery by the Gravel Company. Hewitt-Robins answered this third-party complaint, on the basis that it had sold the screen to Union, which had in turn sold it to the Gravel Company, and that Hewitt-Robins had made no warranties to the Gravel Company. After the depositions of the presidents of the Gravel Company and Union were taken, Hewitt-Robins moved for summary judgment in the first case, for a dismissal of the third-party complaint in the second case, and Union asked for summary judgment in the second case.

The following appears from the depositions: For some years, the president of Union had been calling upon the president of the Gravel Company, making sales of various items of equipment needed by the Gravel Company. During one of these visits, the president of the Gravel Company said that he had seen a new type of sand and gravel screen advertised, and that he might be interested in it. Union's representative stated that he did not know much about it, but would have a sales representative of Hewitt-Robins call upon the Gravel Company. Various conversations were held with the sales representative of Hewitt-Robins, and, finally, a telephone call was made and the president of the Gravel Company talked with an employee of the Hewitt-Robins plant in Passaic, New Jersey. During this conversation, the president of the Gravel Company advised the factory employee of Hewitt-Robins what his needs were, and the difficulties that he expected because of the composition of the aggregate from which the sand and gravel is produced. The Gravel Company urges that it was as a result of this conversation and the assurances made by the factory representative that the order for the screen was made. The difficulty, however, arises by reason of the fact that there was no written contract between Hewitt-Robins and the Gravel Company, and that the screen was shipped as a result of a purchase order from Union to Hewitt-Robins, directing that the screen be shipped direct to the Gravel Company. Hewitt-Robins contends that the purchase order signifies a sale between it and Union, whereas Union, contrariwise, insists that the purchase order was only a confirmation of the order made by the Gravel Company from Hewitt-Robins during the telephone conversation. The purchase order states:

'This order confirms telephone conversation on 6/30/55 between your Mr. F. L. Brucker and Mr. H. Lautenschlager.'

This was a reference to the conversation when the president of the Gravel Company talked with the factory, the two persons named being employees of Hewitt-Robins.

Although the Gravel Company admits that the cost of the screen was to be charged through Union, nevertheless it claims that this was done because credit was already established with Union and not with Hewitt-Robins. The testimony of the president of Union substantiates this contention, and it also should be noted that Union was to receive a commission from Hewitt-Robins on the price of the sale, as set by Hewitt-Robins.

It is to be noted that Union had a distributor's agreement with Hewitt-Robins, which included the following provisions:

'Sec. 10. Engineering business is that material handling machinery business consisting of inquiries, orders or contracts for elevating, conveying, screening or processing machinery consolidated by engineering service into an integrated layout of materials handling machinery to fit the specified needs of the purchaser. Such business is not within the scope of this agreement.'

Union claims that the above section of the agreement precluded it from selling the screen to the Gravel Company. The Gravel Company's position is that it could not be bound by the provisions of an agreement between two other parties, and that therefore the section has no...