International Harvester Co. of America v. Leifer, 1646

• Decision Date: 19 November 1930
• Docket Number: 1646
• Citation: 42 Wyo. 283,293 P. 381
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. LEIFER
• Court: Wyoming Supreme Court

293 P. 381

42 Wyo. 283

INTERNATIONAL HARVESTER CO. OF AMERICA v. LEIFER

No. 1646

Supreme Court of Wyoming

November 19, 1930

APPEAL from District Court, Hot Springs County; BRYANT S. CROMER Judge.

Action by the International Harvester Company of America against Chris Leifer. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

For the defendant and appellant there was a brief by Ingle &amp Ferguson, of Thermopolis, Wyoming, and oral argument by Mr C. R. Ingle.

The point involved, is one of representations, made by plaintiff's agents, that the truck sold defendant, would have a closed cab, a rear wheel clearance of eleven inches, and closed muffler, all of which were violated, and the battery in the truck was defective. The defendant had a right of counterclaim for $ 40.00, on account of the battery and muffler, 35 Cyc. 435, and was entitled to show an implied warranty, that the article purchased was suitable for the purpose intended. 4737 C. S. The court erred in excluding evidence offered by defendant in support of his defense, as to the cab and rear wheel clearance. 35 Cyc. 391. 33 L. R. A. (N. S.) 501; Loxtercamp v. Liniger Imp. Co., 125 N.W. 830. Express and parol warranties may exist together, where not inconsistent. Hooven & Allison Co. v. Wirtz, 134 S.W. 7, 28 A. L. R. 986, 140 N.E. 118. An express warranty that the article should be in good order, does not exclude an implied warranty of fitness for the purpose intended. 35 Cyc. 393, 24 R. C. L. 459. On sale without warranty there is implied warranty as to fitness. Harvester Co. v. Bean, (Ky.) 169 S.W. 549; Boulware v. Auto Co., (Mo.) 134 S.W. 7; Long v. Co., (Wash.) 212 P. 559; Gary Coast Agency, Inc. v. Lawrey, (Ore.) 201 P. 214; Harris v. St. Ry., (Mo.) 153 S.W. 1067; Minneapolis Co. v. Casey, 201 N.W. 172; Hardy v. Gen. Motors, 144 S.E. 326. There was no attempt to vary the contract as to description of the cab, which was left blank. 10 R. C. L. 1019. Where order is not filled in, there is no warranty. Valerius v. Hockspire, (Ia.) 54 N.W. 136.

For the plaintiff and respondent there was a brief by Fred Wyckoff, of Thermopolis, Wyoming, and Kinkead and Pearson, of Cheyenne, Wyoming, and oral argument by Mr. Allan A. Pearson.

There was no evidence supporting appellant's theory of implied warranty, under the provisions of Section 4737 C. S. The truck was described in the written order which was introduced. Where a known and defined article is supplied, there is no implied warranty that it shall answer the particular purposes intended by the purchaser. Beggs v. James Handley Brewing Co., (R. I.) 62 A. 373, 375; Seitz v. Brewers Ref. Co., 141 U.S. 510; Ohio Electric Co. v. Wis.-Minn. Co., (Wis.) 155 N.W. 112; Pullman Co. v. Rwy. Co., 157 U.S. 94; Davis Co. v. Mallery, 137 F. 332; Boston Co. v. Folson, (Mass.) 130 N.E. 197; Ward v. Great A. Co., (Mass.) 120 N.E. 225; Oldfield v. Motor Co., (Md.) 113 A. 632; Osborne v. Nicholson, 80 U.S. 654; G. M. C. Truck Co. v. Kelly, (Okla.) 231 P. 882. On the back of the order there was an express warranty, stipulating that it was in lieu of all other warranties; the order and warranty endorsed thereon governed the transaction. Youngs. v. Advance-Rumley Thresher Co., (Mich.) 184 N.W. 535; Kinnard-Haines Co. v. Dillingham, (Okla.) 175 P. 208; Advance-Rumley Thresher Co. v. Nelson, (Kan.) 184 P. 982; Williams v. Tractor Co., (Calif.) 198 P. 780; The Nuska, 300 F. 231; Grossellilli Chem. Co. v. Ice Co., (Ala.) 75 So. 920; Murphy v. Gifford, (Mich.) 200 N.W. 263; Kophal v. Weisenbarger, (Mich.) 158 N.W. 122; Ohio Elec. Co. v. Power Co., (Wis.) 155 N.W. 112. Rulings of the court sustaining plaintiff's objections to evidence on the question of agency were proper. Hatch Bros. v. Black, 25 Wyo. 109, 120; Mapes v. Foster, 38 Wyo. 244. There was no evidence fixing liability of plaintiff for injuries to the muffler. It was shown by the evidence that defendant had examined a truck of identical make and style with the one delivered to him, and he saw the identical truck which he purchased before he signed the note and mortgage, and made no objection thereto.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case is here by direct appeal from a judgment of the District Court of Hot Springs County, which the plaintiff and respondent, hereinafter mentioned as the "plaintiff," recovered against the defendant and appellant, subsequently to be referred to as the "defendant."

The facts involved are briefly these: June 25, 1927, the defendant, dealing with the sales agents of the plaintiff, gave a signed written order for "1 Model S-24 Maximum Capacity 2500 lbs. International Motor Truck, Tire Equipment--(Size and Kind) Front 30 x 5, Rear 30 x 5, Style of Body-Panel Stake, Style of Top , Other Attachments Cab & Curtains," for which he agreed to pay $ 1658.67, of which sum $ 800 was to be paid on delivery of the truck in the form of cash and also by an allowance for another truck to be turned over to plaintiff; the balance of $ 858.67 was agreed to be paid in twelve equal monthly installments. This order was sent on to the plaintiff at its branch office at Billings, Montana, for its acceptance, which was, on June 29, 1927, duly affixed in writing. Nearly a month later the truck was delivered, and on July 26, 1927, defendant executed and gave to plaintiff his promissory note for the balance of the purchase price aforesaid, and also a chattel mortgage on the truck to secure this note, which was made payable in monthly installments, as previously agreed in the written order. Defendant took the truck, used it, and paid the several installments due on this note, with the exception of the last two, which he failed to pay.

Plaintiff then brought this action to recover the balance due on the vehicle, and to foreclose the chattel mortgage thereon. Answering, the defendant admitted the execution of the note and mortgage to the plaintiff, but denied that any sum was due it by reason thereof. As a further answer it was alleged, that the plaintiff, in making the sale of the truck, represented and warranted, through its agents, that the truck would be delivered "equipped with a fully inclosed cab and with wheels that would provide a clearance of eleven inches of the ground;" that the warranty was violated and only a "three-quarters cab which is not inclosed" and rear wheels which would provide a clearance of only eight inches were furnished. It was also alleged, in substance, that when the truck was delivered to the defendant, plaintiff's agents promised that if the defendant would take the vehicle, a closed cab and wheels for the greater clearance would be supplied by plaintiff free of cost to the defendant, and, relying on this promise, the defendant purchased the truck; that the plaintiff represented the truck to be free of mechanical defects and of good material and workmanship throughout, but the muffler on the truck was, nevertheless, so defective that it was worthless, and the battery was also worthless, and had to be returned to plaintiff. Damages were, accordingly, demanded on account of these matters, and also because of an asserted inability of the defendant to use the conveyance for two months each year in consequence of the broken warranty claimed as aforesaid. A reply was filed, putting in issue the affirmative allegations of the answer and pleading the written order signed by the defendant, as described above.

Trial was had to the court without a jury, with the result that a judgment was entered substantially as prayed in plaintiff's petition.

The brief and argument of the defendant in this court presents only claims for damages arising in connection with the failure on plaintiff's part to furnish an inclosed cab, and eleven inch clearance for the truck, the alleged defective muffler and battery. All other questions are necessarily waived. Riordan v. Horton, 16 Wyo. 363, 94 P. 448; Chicago, Burlington & Quincy R. R. Co. v. Lampman, 18 Wyo. 106, 104 P. 533, 25 L. R. A. (N. S.) 217, Ann. Cas. 1912C, 788. Indeed, proof as to the other elements of damages mentioned in the answer of the defendant does not appear in the record.

In the course of the trial, defendant offered to prove, in effect, that before he entered into the agreement to purchase the truck in question, he orally informed the agents of plaintiff that he wanted a truck with an inclosed cab, and that he would have no other kind; also that said agents orally assured him at that time that the truck they were selling had an entirely inclosed cab, and that they would send him such an one. This offer of proof was denied by the court upon plaintiff's objection, defendant was allowed an exception, and now insists that the proof should have been received.

The written order for the truck, signed by the defendant, and accepted in writing by plaintiff, constituted the contract of sale of the vehicle between the parties. It contained the following clauses:

"The motor truck herein ordered is sold under the REGULAR PRINTED WARRANTY GIVEN BY THE INTERNATIONAL HARVESTER COMPANY OF AMERICA as printed on the back hereof and no others. The purchaser agrees that this order contains the entire agreement relating to the sale of said motor truck and that he has received a true copy thereof."

The capital letters appearing in the foregoing quotation, appear in the original instrument as bold-faced type. On the back of the written order aforesaid, under the title "Warranty," are set forth the terms of the plaintiff's printed warranty, as well as certain limitations thereof; then follows the statement:

"The above warranties are in lieu of all other warranties express or implied and no person, agent or dealer is authorized to give any other warranties...