International Harvester Co. v. Lawyer
| Decision Date | 01 February 1916 |
| Docket Number | 6153. |
| Citation | 155 P. 617,56 Okla. 207,1916 OK 142 |
| Parties | INTERNATIONAL HARVESTER CO. v. LAWYER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 7, 1916.
Syllabus by the Court.
"Warranty" is a matter of intention. A decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion, or his judgment, upon a matter of which the vendor has no special knowledge, and on which the buyer may also be expected to have an opinion and to exercise his judgment. In the former case there is a warranty; in the latter case there is not. Benjamin on Sales § 932.
The buyer knew nothing about the capacity of the automobile purchased. The seller was an expert in the handling of automobiles, and was engaged in the business of demonstrating and selling the same. Held, a statement made by the seller that the automobile could be driven over the roads in a certain vicinity satisfactorily constituted a warranty and was not the expression of a mere opinion.
Where an agent is sent into a community to introduce a new and unproven automobile as to that community, the agent's authority to sell, no restrictions to the contrary appearing carries with it the implied power to warrant it to be suitable for the purpose intended.
An oral warranty of the fitness of the automobile for a certain territory was made by the agent of the company to the local dealer. The local dealer made the same oral warranty to the purchasers from him. When the automobiles sold by the local dealer were delivered by the company to the purchasers, the company had these purchasers sign an order for the same which written order stipulated that there was no warranty of the automobile except as set out in the written order. Held, the local dealer, not having authorized the purchasers to sign such an order for him, and having no knowledge that the same had been done, was not bound or precluded by the terms of the written order.
Payment part payment, or the giving of notes for the purchase price, is not a waiver of a breach of warranty unless an intent to waive such breach is proven.
The ruling of the trial court as to the qualifications of witnesses introduced as experts will not be disturbed on appeal, unless it appears that the court abused its discretion in the matter.
Commissioners' Opinion, Division No. 4. Error from District Court, Oklahoma County; W. R. Taylor, Judge.
Action by J. E. Lawyer against the International Harvester Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Burwell, Crockett & Johnson, of Oklahoma City, for plaintiff in error.
Sam Hooker and Grant Stanley, both of Oklahoma City, for defendant in error.
The parties will be designated as in the trial court. This action was instituted by the plaintiff to recover damages from the defendant for an alleged breach of warranty in the sale of certain automobiles. The plaintiff based his demand for damages upon his claim that during the year 1910 and the following years he was an implement dealer at Maud, Okl., and that the defendant, knowing his desire to purchase an automobile suitable to the Maud territory to sell to his customers, sold to plaintiff four automobiles, which its agent orally warranted to be fit for use in that territory; that he sold three of said automobiles to customers, but was compelled to retake possession thereof on account of the unfitness of said automobiles for the roads in and around Maud, and so lost the amount paid for same, and that for the same reason he was unable to sell the other automobile. Defendant's defense was, in substance, that the automobiles were not defective; that there was no oral warranty, but that the contract was in writing, which contained the entire warranty; that said automobiles were not returned; that full payment was made after the same had been in use for more than a year, and that two of the automobiles were not sold to plaintiff, but to third parties. The action was tried to the court without a jury, whose findings were in favor of plaintiff.
The plaintiff testified at the trial that the agent of defendant represented to him that the automobiles he was trying to sell him would go over the roads around the town of Maud, and would go anywhere a team of mules could be driven, and that a local physician, who was contemplating buying one, could use it in his practice instead of a team. The defendant urges that these and similar statements, as testified to at the trial, do not constitute a warranty, and was not a statement of fact, but the expression of an opinion.
It is one of the difficult problems in the law to be able, with any degree of certainty, to determine in many instances whether a statement made in the negotiation of a trade is merely the expression of an opinion, just "trade talk," or constitutes a binding warranty. The opinions of the different jurisdictions are not in accord on this subject and each side to this controversy have assembled a strong array of authorities which apparently unhold their side of the question. The defendant cites Smith v. Bolster, 70 Wash. 1, 125 P. 1022; Gaar, Scott & Co. v. Halverson, 128 Iowa, 603, 105 N.W. 108; Richardson v. Coffman, 87 Iowa, 121, 54 N.W. 356; Clark v. Ralls, 50 Iowa, 275; Woodridge v. Brown, 149 N.C. 299, 62 S.E. 1076. The plaintiff cites Mechem on Sales, vol. 2, p. 1243; 30 Ency. p. 142; Whitehead v. Ryder, 139 Mass. 366, 31 N.E. 736; Huntington v. Lumbarg, 22 Wash. 202, 60 P. 414; Elkins v. Kenyon, 34 Wis. 93; N.W. Lumber Co. v. Callendar, 36 Wash. 492, 79 P. 30; Gould v. Stein, 149 Mass. 570, 22 N.E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Tacoma Coal Co. v. Bradley et al., 2 Wash. 600, 27 P. 454, 26 Am. St. Rep. 890; Barnum Wire & Iron Works v. Seley, 34 Tex.Civ.App. 47, 77 S.W. 827; Brown v. Freeman, 79 Ala. 406; Frey v. Failes, 37 Okl. 299, 132 P. 342; 35 Cyc. 381.
After a careful examination of the above-cited authorities, we conclude that warranty is a matter of intention. A decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion, or his judgment, upon a matter of which the vendor has no special knowledge, and on which the buyer may also be expected to have an opinion and to exercise his judgment. In the former case there is a warranty; in the latter case there is not. Benjamin on Sales, § 932. Applying this test to the case at bar, we conclude that the foregoing statements, and many similar statements as shown by the record made by the agent of defendant to plaintiff, constituted warranties.
The evidence shows that the plaintiff knew nothing about automobiles at the time, and was not informed as to the ability of the same to negotiate the roads in that vicinity. He had no judgment upon the matter to exercise, and could but rely upon the statements of defendant's agent. On the other hand, the said agent was an expert in the handling of automobiles, and was engaged in the business of demonstrating and selling the very automobiles he was then endeavoring to sell plaintiff.
The defendant next urges that no evidence was introduced by the plaintiff to show the nature or extent of the authority of defendant's agent, which is true, and advances the legal proposition that, to bind the principal, it must be shown that the agent had express authority to warrant, or that it was usual or customary to give a warranty in the sale of the particular property in question. On the other hand, the plaintiff contends that an agent who is authorized to sell is authorized to make a warranty. As in the proposition last discussed above, we again find the authorities irreconcilable, and the attorneys upon both sides with unusual ability and diligence present us in their briefs with many cases supporting their respective contentions. The defendant cites the following: Williston on Sales, § 445; Tiedeman on Sales, § 183; 30 Ency. of Law, 165; 31 Cyc. 1353; Pickert v. Marston, 68 Wis. 465, 32 N.W. 550, 60 Am. Rep. 876; Pennsylvania & Delaware Oil Co. v. Spitelnik, 27 Misc. 557, 58 N.Y.S. 311; Ellner v. Priestley, 39 Misc. 535, 80 N.Y.S. 371; Bierman v. City Mills Co., 151 N.Y. 482, 45 N.E. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635; Herring v. Skaggs, 62 Ala. 186, 34 Am. Rep. 4; Benjamin on Sales, § 945; Reese v. Bates, 94 Va. 321, 26 S.E. 865; Westurn v. Page, 94 Wis. 251, 68 N.W. 1003; Hayner v. Churchill, 29 Mo.App. 676; Upton v. Suffolk County Mills, 11 Cush. (Mass.) 586, 59 Am. Dec. 163. The plaintiff cites the following: 31 Cyc. 1355; 30 Am. & Eng. Ency. of Law, 163; Mechem on Agency, § 348; Schuchardt v. Allen, 1 Wall. (U. S.) 359, 17 L.Ed. 642; Talmage v. Bierhause, 103 Ind. 270, 2 N.E. 716; Gaar, Scott & Co. v. Patterson, 65 Minn. 449, 68 N.W. 69; Williamson v. Canaday, 25 N.C. 349; Hunter v. Jameson, 28 N.C. 252; Alpha Mills v. Watertown Steam Engine Co., 116 N.C. 797, 21 S.E. 917; Dayton v. Hooglund, 39 Ohio St. 671; Exell v. Franklin, 34 Tenn. (2 Sneed) 236; Skinner v. Gunn, 9 Port. (Ala.) 305; Cooke v. Campbell, 13 Ala. 286; Dennis v. Ashley's Adm'rs, 15 Mo. 453; Franklin v. Exell, 33 Tenn. (1 Sneed) 497; Bradford v. Bush, 10 Ala. 386; Cochran v. Chitwood, 59 Ill. 53; McCormick v. Kelly, 28 Minn. 135, 9 N.W. 675; Flatt v. Osborne, 33 Minn. 98, 22 N.W. 440; Tice v. Gallup, 2 Hun, 446; Loomis Milling Co. v. Vawter, 8 Kan. App. 437, 57 P. 43; Belmont's Ex'r v. Talbot (Ky.) 51 S.W. 588; Hille v. Adair (Ky.) 58 S.W. 697; Ellison v. Simmons, 6 Pennewill (Del.) 200, 65 A. 591; Haynor Mfg. Co. v. Davis, 147 N.C. 267, 61 S.E. 54, 17 L. R. A. (N. S.) 193; Laumeier v. Dolph, 145 Mo.App. 78, 130 S.W. 360; Park v. Brandt, 20 Idaho, 660, 119 P. 877.
In the case at bar, the defendant was seeking to introduce an automobile, untried and unproven in...
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