Horrell v. Santa Fe Tank & Tower Co.

• Decision Date: 31 March 1953
• Citation: 117 Cal.App.2d 114,254 P.2d 893
• Court: California Court of Appeals Court of Appeals
• Parties: HORRELL v. SANTA FE TANK & TOWER CO. et al. Civ. 19096.

Page 893

254 P.2d 893

117 Cal.App.2d 114

HORRELL v. SANTA FE TANK & TOWER CO. et al.

Civ. 19096.

District Court of Appeal, Second District, Division 1, California.

March 31, 1953.

Rehearing Denied April 27, 1953.

Hearing Denied May 28, 1953.

George R. Maury, Los Angeles, for plaintiff-respondent.

Wadsworth & Fraser, Los Angeles, for defendants-appellants.

DRAPEAU, Justice.

Plaintiff is a mechanical engineer engaged in the sale of processing equipment. In late May of 1947, his customer Citrus Foods Company was in the market for a refrigerator unit for cooling canned orange juice. Plaintiff telephoned defendant company and inquired of Mr. Dresser, manager of the cooling equipment division, 'if he could supply a water cooling tower * * * to cool 311 gallons per minute of water from 95 degrees back down to 80 degrees Fahrenheit the tower was to be used in or near La Habra, California. * * * He asked me if I knew what the weather conditions were at La Habra, and I told him I don't. * * * He asked me if I knew what the wet bulb temperature was at La Habra. I told him I did not. He asked me if I knew what the wind velocity was at La Habra, and I again told him that I did not; those were things that were up to him, I was not designing a tower, I wanted a tower to cool that much water in or near La Habra. * * * I told Mr. Dresser on the telephone that one of the stipulations was that this cooling tower would have to be delivered and erected in not to exceed 30 days. I asked him if he could comply with that requirement, and he said yes.'

Either that day or the next morning, Mr. Dresser quoted plaintiff a price on an atmospheric-type cooling tower. On May 29, 1947, defendant company confirmed such quotation by a written proposal containing the following warranty of performance:

'Quantity Clean Water--U.S. Gallons per Min. 311

Initial Temp. 95? F. Dry Bulb 85? F.

Final Temp. 80? F. Wet Bulb 68? F.

Wind Velocity 3 m.p.h. Rel. Humidity 41%

Drift Loss .2%

Tower Site--ground

Tower Location--near La Habra, California.

Exposure--Must be broadside to prevailing wind.'

Specifically, defendants warranted performance of the tower with a three mile wind blowing broadside of the cooling tower.

The tower was duly installed. The citrus company selected the site, put in the forms and poured the concrete for the base. Defendants' workmen built the tower on the concrete base. When the cooling system was completed, it failed to work.

By process of elimination it was found that the 'water wasn't being cooled properly. * * * The tower was not adequate.' This for the reason that the prevailing wind in La Habra was at times less than three miles.

Defendants at first suggested additional sprays which were ineffective when installed. On September 19, 1947, defendants recommended the installation of an entirely different type of tower, i. e., a mechanical draft tower.

By the instant action plaintiff sought damages from defendants. Defendants' demurrer was sustained to the first cause of action of the third amended complaint without leave to amend.

The case went to trial on the second cause of action of said third amended complaint, to-wit: fraud and deceit based upon misrepresentations of defendants concerning the weather conditions under which the tower would operate in or near La Habra.

The jury returned its verdict in favor of plaintiff. From the judgment which followed, and from the order denying their motion for judgment notwithstanding the verdict, defendants appeal.

Plaintiff has also appealed from a portion of the judgment and from an order striking cost bill which appeal is the subject of a motion now pending in this court.

It is first urged that respondent has not stated a cause of action in fraud and deceit, because of failure to allege scienter or knowledge on the part of appellants.

In general, to establish a cause of action for fraud or deceit, 'plaintiff must prove that a material representation was made; that it was false; that defendants knew it to be untrue or did not have sufficient knowledge to warrant a belief that it was true; that it was made with an intent to induce plaintiff to act in reliance thereon; that plaintiff reasonably believed it to be true; that it was relied on by plaintiff; and that plaintiff suffered damage thereby.' Hobart v. Hobart Estate Co., 26 Cal.2d 412, 422, 159 P.2d 958, 964.

The complaint here does allege that when they made their oral statement and submitted their written offer, 'defendants did not have exact accurate information and data concerning the atmospheric or weather conditions at or near La Habra, California, and were well aware that without such information and data they could not accurately predict the performance of the cooling tower described in their written confirmation of offer or any cooling tower; and at said times and at all times thereafter to on or about September 15, 1947, defendants concealed and suppressed from plaintiff their lack of information and data and their consequent inability to predict accurately the performance of said cooling tower at or near La Habra, California.'

That weather conditions at La Habra played an important part in the performance of the tower is evidenced by the questions put to respondent by appellants' agent Dresser, as hereinbefore noted. Moreover, Mr. Dresser testified that he understood from his conversation with him that respondent knew nothing about the weather conditions at La Habra.

When asked the following question: 'When you made him the quotation * * * you put in that quotation dry bulb 85 degrees, wet bulb 68 degrees Fahrenheit, relative humidity 41 per cent, wind velocity 3 miles per hour. First with regard to the wind velocity, Mr. Dresser, what information did you have at that time to arrive at a wind velocity of 3 miles an hour?'--Mr. Dresser replied: 'Past experience on quoting cooling towers for installation in this area; also charts showing wind direction and the average wind velocity, which is higher than what was picked.'

One of the charts used was a government weather bureau report showing average wind velocity for the city of Los Angeles.

The witness admitted that he did not conduct any wind tests at La Habra prior to making his quotation.

He further testified:

'Q. By Mr. Maury: You were aware, then, I take it, Mr. Dresser, at the time that you sold the tower to Mr. Horrell, that it did require a 3 mile per hour wind in order to function properly? Did it not? A. Yes, sir.

'Q. And you were also aware, were you not, that there was no 3 mile an hour constant wind to be expected anywhere in the Los Angeles basin area; is that not true? * * * The Witness: The answer is that's true. * * * When I talked with Mr. Horrell I knew that the cooling tower would perform when the wind was 3 miles per hour and given...