J. B. Colt Co. v. Gavin.

• Decision Date: 09 November 1927
• Docket Number: No. 3157.,3157.
• Citation: 262 P. 529,33 N.M. 169
• Parties: J. B. COLT CO.v.GAVIN.
• Court: New Mexico Supreme Court

33 N.M. 169

262 P. 529

J. B. COLT CO.

v.GAVIN.

No. 3157.

Supreme Court of New Mexico.

Nov. 9, 1927.Rehearing Denied Jan. 10, 1928.

Syllabus by the Court.

Trial being to the court, admission of incompetent evidence not reversible error unless it may have affected the result.

Implied warranty not excluded by mere presence of express warranties relating to different subject and not inconsistent.

On Motion for Rehearing.

Questions not raised in the trial court will not ordinarily be considered here.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Action by the J. B. Colt Company against Mrs. Mary A. Gavin. From a judgment for defendant, plaintiff appeals. Affirmed, and cause remanded.

Implied warranty not excluded by mere presence of express warranties relating to different subject and not inconsistent.

H. G. Gatling, of Albuquerque, for appellant.

Downer & Keleher and Walter C. Cochrane, all of Albuquerque, for appellee.

WATSON, J.

Appellant sued appellee upon a promissory note. Appellee admitted its execution and affirmatively alleged:

That it was given “in payment of and for a carbide plant, which the plaintiff represented and held out to the defendant to be a machine or appliance which would operate successfully during all the months of the year in furnishing gas for fuel and cooking purposes.”

She further alleged:

“That the said plaintiff misled this defendant in that said equipment and appliance was defective and did not operate as promised by the plaintiff in that the water in said plant freezes in October, November, December, January, February, and March, during which time said equipment could not be used for any purpose.”

Because of these facts, appellee alleged that the plant was worthless and that the consideration for the note had failed.

Appellant replied, admitting that the consideration for the note was as stated, setting up the written contract for the sale of said plant, alleged that the writing included the whole agreement between the parties, and that it had fully performed the same.

The contract contained the following warranty:

“It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable, galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters.”

The case was tried to the court, who based the judgment upon specific findings of fact and conclusions of law. Of his own motion, he found, in substance, that there was no defect in the machine as to material or workmanship, and that it operated successfully and satisfactorily during the warm weather, but during the colder months of the year the water in the galvanized tank would freeze, interrupting the generation of gas; that the plant was sold for the special purpose of furnishing illuminating and cooking gas for domestic purposes; and that, while the installation of the plant and the housing of the generator were under a separate contract with one Alary, and were paid for by appellee, he was in fact introduced by appellant, and reported installation upon a blank form furnished by appellant containing a certificate by appellee to the effect that she had witnessed the tests, that the connections had been made in accordance with the instructions for installing, that the installer had made certain explanations to her, and that the installation was complete and satisfactory. He further found that it was installed in an adobe structure according to Alary's directions, and that the structure was afterwards slightly changed at the suggestion of the “admitted agent” of appellant.

The court's conclusions of law were as follows:

“(1) The specific warranties contained in the sales agreement do not exclude a general implied warranty that the machine is suitable for the special purposes for which it was sold to the defendant, namely, furnishing illuminating and cooking gas for domestic purposes.

(2) The man who installed the machine was an agent of the plaintiff company, and the claim of plaintiff that he was not is a sham and a pretense.

(3) The court finds that the climate of Albuquerque is not an unreasonably cold climate and, in fact, is milder than in most portions of the United States, and that the reasonable implied warranty as to the purpose of the machine is that the same will function in any ordinary climate. If it is necessary to install a machine in a place where the temperature is kept above freezing, this should doubtless be disclosed by the company. In the instant case the company undertook to direct and superintend the installation of the machinery, and consequently the defendant had a right to expect that the machine was properly installed and housed and would perform the functions for which it was sold. The court holds that the failure of the machine to function after being installed by the company constituted a breach of the implied warranty mentioned in conclusion of law No. 1.”

At appellant's request, the court further concluded, as matter of law:

“That the fact that water will freeze in cold weather is a matter of common knowledge, notice of which is chargeable to the defendant, and of which fact the court will take judicial knowledge.”

[1] It is contended, first, that the court erred in refusing to strike testimony of appellee tending to vary the terms of the written contract. This contention might be overruled on several grounds, but it is sufficient to say that the evidence apparently had no effect on the result. It was to the effect that appellant had agreed that if the apparatus “didn't work in one year, they were to take it back.” The warranty, for breach of which recovery was denied, was one implied by the court, regardless of any express agreement between the parties. For that reason, if the evidence was incompetent its admission is not available error. Moore v. Moore, 28 N. M. 463, 214 P. 585.

It is true, as next contended by appellant, that there was no admission that the person at whose suggestion the housing of the plant was changed, was appellant's agent. However, there was proof of the fact, and it was not objected to nor rebutted. The court, no doubt, used the expression “admitted agent” in the sense merely that the agency was not denied. We find no merit in this assigned error.

[2] The third proposition presented is that the express warranties contained in the contract excluded the implied warranty upon which the judgment is based, namely, fitness of the plant for the special purpose for which sold.

It is not doubted that if a machine is sold for a particular use, there is an implied warranty of suitability. Nor do we doubt that an express warranty as to suitability will exclude any implied warranty thereof. For instance, an express warranty that the machine would operate successfully at a specified temperature would exclude the particular warranty implied by the court in this case. But the express warranties above set forth relate not at all to the working or functioning of the machine, nor to its adaptability to any conditions or fitness for any purpose, only to its material and workmanship, and to its acceptability to the underwriters. The question therefore is whether an express warranty as to one subject excludes the ordinarily implied warranties as to others.

While many cases can be found in which it is broadly said that the presence of express warranties excludes all warranties by implication, and some cases have actually applied such rule, we think that the better reasoning and the great weight of authority support the proposition that the ordinarily implied warranties are not excluded by the mere presence of express warranties relating to different subject-matter, and not inconsistent therewith. See 2 Mechem on...