E. I. Du Pont De Nemours & Co. v. Universal Moulded Products Corp.

• Decision Date: 27 November 1950
• Docket Number: No. 3663,3663
• Citation: 191 Va. 525,62 S.E.2d 233
• Court: Virginia Supreme Court
• Parties: E. I. DUPONT DENEMOURS & COMPANY v. UNIVERSAL MOULDED PRODUCTS CORPORATION. Record

Page 233

62 S.E.2d 233

191 Va. 525

E. I. DUPONT DENEMOURS & COMPANY v. UNIVERSAL MOULDED PRODUCTS CORPORATION.

Record No. 3663.

Supreme Court of Appeals of Virginia

November 27, 1950.

Stant & Roberts, Abel Klaw, Woods, Rogers, Muse & Walker and W. Breckenridge De Riemer, for the plaintiff in error.

Jones, Woodward & Miles, Reed, Crane & McGovern and Martin J. Coughlin, for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This is a proceeding by notice of motion for judgment instituted on January 2, 1948, by Universal Moulded Products Corporation, hereinafter referred to as plaintiff or Universal, against E. I. duPont de Nemours & Company, hereinafter referred to as defendant or duPont, to recover $650,000 damages alleged to have been sustained as a result of improper and defective paint materials furnished by duPont to Universal, for use by the latter in finishing wooden radio cabinets in its plant at Bristol, Virginia.

The notice of motion, containing five counts, alleged that duPont, with knowledge of the requirements of Universal, furnished paint materials to the latter with an express warranty of uniformity and an implied warranty of fitness; that contrary to its warranties the materials were defective, producing on the surface of the finished cabinets blemishes which made them unsalable; that duPont made fraudulent misrepresentations with respect to such materials, fraudulently concealed changes in their ingredients, and was negligent in their manufacture; and that during June, July, August and September of 1947 and the three months following Universal suffered a loss of $650,000, because of the expense of correcting defects in the finish of cabinets, occasioned by the unfitness of duPont's finishing materials and systems, and in the consequent slow-down and interruption of the normal operation of its plant, all of which was the reasonably foreseeable and probable result of the faults attributed to duPont. The damage claim was later amended by leave of court to $666,561.40.

Defendant demurred to the notice of motion upon eight separate grounds, the principal ground being for misjoinder of causes of action, in that one count of the notice was based upon breach of warranty, two upon tort, and another upon negligence. The demurrer was overruled.

Universal filed a bill of particulars, thirty-four pages in length, containing six printed tables. It set out that for the months of June, July, August and September, 1947, the number of cabinets rejected by its inspection department as not satisfactory in finish was estimated to be 3,131. It admitted that no complete and accurate record of such finish failures was kept, but said it thought that the number rejected was larger than that named. So far as it related to damages, the bill set out a copy of an invoice rendered to duPont on August 23, 1947, in the amount of $65,208.04 for losses alleged to have occurred between June 13th and June 30th, 1947. In a tabulation of an analysis of the operations of Universal from July 1, 1947, to December 31, 1947, under columnar headings, were shown the breakdown of production costs and expenses, administrative expenses, other income, profit on sale of fixed assets, net production costs and expenses, the actual sales, and the losses for the period. According to the tabulation, Universal charged itself with the loss of $170,988.18 on account of the manufacture and sale of a Bendix cabinet, Model BW-81C, and various other direct and miscellaneous expenses not attributable to duPont. The balance of the losses for the period, amounting to $650,396.29, was charged against duPont.

duPont filed twenty-six grounds of defense, nine of which related to damages. It denied that it had made any warranties to Universal or its customers prior or subsequent to 1947, other than such as might have been implied by law, or made any false representations, or committed any act of negligence, or that any warranties were breached. duPont denied responsibility for anything except uniformity of its products. It alleged that the finishing failures complained of were the natural result of improper application and defective workmanship. It asserted that it merely sold matched colors and finishes, and advised Universal how the desired color and finish could be obtained, but that Universial disregarded its advice. It denied that the damages sued for were foreseeable or the proximate result of any act, neglect, or warranty of duPont. It alleged that the loss, damage and expenses claimed by Universal resulted from Universal's own defective construction and workmanship of cabinets, and were so substantial a part of the total loss and damages sustained as to make it too uncertain and speculative what part should be assessed against duPont, if duPont was responsible for any portion of it.

On March 23, 1949, after a consideration of the evidence and instructions of the court, the jury returned a verdict in favor of Universal for $561,959.06.

On May 4, 1949, after refusal of the trial court to set aside the verdict, final judgment was entered accordingly. To that judgment this writ of error was granted.

The defendant assigns a multiplicity of errors. They relate to the refusal of the court to sustain its demurrer for misjoinder of causes of action; to the admissibility of evidence; to the sufficiency of the evidence to support the verdict; to the giving and refusing of instructions; and to the method of proof of damages. Other assignments relate to the competency of witnesses, to the badgering of witnesses by counsel for plaintiff, and to numerous miscellaneous rulings by the court.

The main issues, as we see them, may be resolved into the following four questions:

(1) Whether there was a misjoinder of actions in the notice of motion.

(2) Whether there was an implied warranty of fitness and a breach of that warranty.

(3) Whether the evidence was admissible and adequate to establish the loss ascertained by the jury.

(4) Whether the court instructed the jury as to the proper method of proving and measuring damages.

Although the contention of duPont that there was a misjoinder of causes of action in the notice of motion is argued at some length in its brief, it was not pressed in the oral argument. Originally, actions for breach of warranty were tort actions. In 4 Am. Jur., Assumpsit, section 15, page 504, this is said:

'For some four hundred years from the first recorded instance of an action for the breach of a warranty in the sale of a chattel, the exclusive remedy was by an action on the case for deceit. Liability for the breach of a warranty thus appears to have been conceived as purely in tort.'

In Virginia, the distinction between common law forms of actions has largely disappeared since the adoption of our notice of motion statute. Virginia Code, 1950, sec. 8-717. In the interpretation of that statute we have adopted a liberality of procedure. Felvey v. Shaffer, 186 Va. 419, 42 S.E. (2d) 860; Sanford v. Ware, ante, p. 43, 60 S.E. (2d) 10.

In Trice v. Cockran, 8 Gratt. (49 Va.) 442, 450, 56 Am.Dec. 151, this court said:

'The action of trespass on the case, is a proper remedy for the breach of an express warranty of soundness of a slave, or other personal chattel sold, as much so as the action of assumpsit, with which it is a concurrent remedy, and the party aggrieved may elect between them. In both forms of action, the gravamen is the breach of the warranty, which in the former is treated as a tort, with the appropriate language in declaring for a tort, but a scienter or knowledge of the defendant of unsoundness is immaterial, and need not be alleged in the declaration, nor if alleged need it be proved.'

In Standard Paint Co. v. Vietor, 120 Va. 595, 91 S.E. the plaintiff was allowed to join counts for deceit and breach of warranty in the same action. There Judge Prentis said:

'The gist of the courts in that case (referring to Harvey v. Skipwith, 16 Gratt. (57 Va.) 393), as in this, is the same. Here the action is based upon a breach of warranty, and, while the complainant may, if he chooses, waive the tort and sue upon contract, he is equally at liberty, where there is a breach of warranty, to sue in tort; and this is what the vendee did in this case.

* * *

'From the institution of this action, the cause of the controversy was clearly and distinctly understood by both parties to it. It was the subject of numerous interviews between them and of voluminous correspondence, and the case made by the amendments was the same case referred to in the declaration, namely, the breach of the vendor's warranty as to the roofing material referred to. It would seem clear that it was the duty of the vendee to join all his causes of action in one declaration, but certainly, if it was not his duty, it was his right to do so.

'In 23 Cyc. 395, this is said: 'As a general rule it may be stated, that a plaintiff may join all his causes of action in one declaration, if in separate suits he can recover on each in the same form of action, although the several causes of action are distinct rights of action so that a judgment in one will not bar a recovery for the other. This rule is, however, subject to the qualification that the causes of action must be in the same right.' This statement of the law is well supported by the authorities there cited.

'In this case, if the vendee had vexed the vendor with several suits, he would have been the subject of criticism. Even where the torts are distinct and independent, if they are of the same nature and if the same judgment may be given in each they may, as a general rule, be joined. 23 Cyc. 398; Fisher v. Seaboard Air Line R. Co., 102 Va. 363, 371, 46 S.E. 381, 1 Ann.Cas. 622. Here, the torts complained of grew out of a continuous course of dealing between the same parties with reference to one article of commerce, the roofing, and its application to the...