Jones, Inc. v. W. A. Wiedebusch Plumbing & Heating Co., No. 13297

CourtSupreme Court of West Virginia
Writing for the CourtSPROUSE
Citation201 S.E.2d 248,157 W.Va. 257
Parties, 13 UCC Rep.Serv. 818 JONES, INC., a corporation v. W. A. WIEDEBUSCH PLUMBING AND HEATING CO., a corporation v. EMSWELLER INCORPORATED, a corporation and Norris Industries, a corporation.
Docket NumberNo. 13297
Decision Date11 December 1973

Page 248

201 S.E.2d 248
157 W.Va. 257, 13 UCC Rep.Serv. 818
JONES, INC., a corporation
v.
W. A. WIEDEBUSCH PLUMBING AND HEATING CO., a corporation
v.
EMSWELLER INCORPORATED, a corporation and Norris Industries,
a corporation.
No. 13297.
Supreme Court of Appeals of West Virginia.
Submitted Oct. 2, 1973.
Decided Dec. 11, 1973.

Page 249

Syllabus by the Court

1. Under the provisions of Code, 1931, 46--2--314, as amended, an implied warranty of merchantability presupposes a contractual relationship between the buyer and the seller and guarantees that the goods purchased are generally fit for their ordinary purpose, while, under the provisions of Code, [157 W.Va. 258] 1931, 46--2--315, as amended, an implied warranty for fitness of purpose is established by the existence of three specific elements arising from the transaction.

2. Under the provisions of Code, 1931, 46--2--315, as amended, an implied warranty for fitness of purpose arises when (1) the seller at the time of the contracting had reason to know the particular purpose for which the goods were required; (2) the buyer relied upon the seller to select suitable goods; and (3) the goods were unfit for the particular purpose intended.

3. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3 Syllabus, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736.

4. 'Where the evidence given on behalf of the defendant is clearly insufficient to support a verdict for him so that such verdict if returned by a jury, must be set aside, and the evidence of the plaintiff is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 5 Syllabus,

Page 250

Sommerville v. The Pennsylvania Railroad Co., 151 W.Va. 709, 155 S.E.2d 865.

5. A plaintiff, who seeks to recover damages for breach of an implied warranty for fitness of purpose, is not required to exclude every possible cause for the defective condition of the goods purchased and may establish the defective nature of the goods by circumstantial evidence.

6. The action of a trial court in setting aside a verdict in favor of the defendant, while entitled to peculiar weight on appeal, will be reversed when a consideration of the whole evidence shows clearly a proper case for jury determination.

7. 'A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.' Point 4 Syllabus, Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345.

[157 W.Va. 259] Furbee, Amos, Webb & Critchfield, Alfred J. Lemley and Kenneth R. Miller, Fairmont, for Wiedebusch.

Herschel Rose, Duane Southern, Fairmont, James D. Nash, Jr., Greene, Ketchum & Baker, Huntington, for Jones.

McWhorter, McNeer & Highland, W. Paul McWhorter, Clarksburg, for Emsweller Inc.

SPROUSE, Justice:

This is an appeal from the final judgment of the Circuit Court of Marion County in an action instituted by the plaintiff, Jones, Inc., against the defendant, W. A. Wiedebusch Plumbing and Heating Co., for damages due to an alleged breach of warranty in supplying and installing sprinkler heads in the sprinkler system of the plaintiff's building. After installation, one of the sprinkler heads inexplicably released a large amount of water, causing damage to the plaintiff's merchandise and stock in trade. The amount of the damages was stipulated as $9,148.87.

The defendant filed a third party complaint against Emsweller, Inc., the supplier and installation subcontractor, and Norris Industries, the manufacturer. Emsweller as a third party defendant, filed a cross-claim against Norris. The case in its totality was submitted to [157 W.Va. 260] the jury and a verdict in favor of the defendant Wiedebusch was returned. On April 15, 1972, the circuit court entered judgment upon the jury verdict and dismissed the claims of Wiedebusch against Emsweller and Norris.

On April 18, 1972, upon a motion of the plaintiff pursuant to the Rules of Civil Procedure, the circuit court set aside the judgment and granted the plaintiff a new trial. By that same order, the circuit court directed that the claims of Wiedebusch against Emsweller and Norris be reinstated. Those two ancillary third party cases are the subject of a companion case, appeal number 13298, and are not further considered in this opinion.

The building in which the plaintiff operated a department store in Fairmont, West Virginia, contained a sprinkler system, which had been installed in 1929 and was designed to operate in the event of fire. The heads on the system were geared to discharge water when the temperature reached 165 Fahrenheit for some heads, and for others when the temperature reached 212 Fahrenheit. The plaintiff, in January, 1967, upon the recommendation of the West Virginia Rating Bureau, decided to replace all of the sprinkler heads within the system. Consequently, the plaintiff inventoried the number of heads and their location within the store.

In the fall of 1968, the plaintiff entered into an oral agreement with Wiedebusch to replace all of the sprinkler heads. The terms of the agreement were negotiated by Richard D. Garrison, Secretary, Treasurer and Comptroller of Jones, Inc., and Robert

Page 251

C. Tonry, President of W. A. Wiedebusch Plumbing and Heating Company.

Conflicting evidence was introduced at the trial concerning what descriptive information was provided by the plaintiff to the defendant for the installation and replacement of the sprinkler heads. Garrison testified that a copy of the 1967 inventory which indicated only the number of heads and the location was supplied to [157 W.Va. 261] Wiedebusch, emphasizing that this was all the information furnished. Tonry, the Wiedebusch executive, testified that he remembered receiving no such list and instead was advised orally by another Jones employee of the number of sprinkler heads needed and the temperature rating for each head. The Jones employee denied this. In other words, the plaintiff contends that it only informed the defendant of the number of heads needed, but the defendant contends that in addition to this, it was advised as to the temperature rating for each head. There is no contention that any other information in this connection was discussed.

It is admitted that the parties entered into an agreement whereby Wiedebusch was to supply the sprinkler heads and perform the necessary work. Aside from the conflicting testimony concerning the information supplied about the temperature ratings of each head, there is no conflict in the testimony concerning the parties' intentions and reliance at the time the agreement was reached. Garrison who negotiated the agreement for Jones was asked:

'Q. Did you or any of your people have any experience or expertise in the field of sprinkler systems?

'A. No.

'Q. Or any training as such?

'A. None.

'Q. If anything needed to be done, with whom or with what company or particular outfit did you contact to do such work?

'A. We would look for a company qualified to do this rather specialized work.'

He was also asked:

'Q. Mr. Garrison, what, if any, reliance did Jones place upon whatever skill and judgment of W. A. Wiedebusch in furnishing these heads?

[157 W.Va. 262] 'A. We were relying upon his company totally because of the specialized nature of the transaction.

'Q. You relied upon their skill and judgment in furnishing the heads as the proper heads and in installing them?

'A. That's right.'

In this connection, Robert C. Tonry, President of Wiedebusch, testified that his company previously had been engaged in the business of installing sprinkler heads and still maintained small amounts of sprinkler heads in stock. He stated that the last work of this type that his company had performed was in a building which is now part of the plaintiff's store.

The following questions and answers on cross-examination of Mr. Tonry support the plaintiff's version of this aspect of their relationship:

'Q. * * * isn't it a fact that your company W. A. Wiedebusch Plumbing & Heating held themselves out in some manner or form that they could do the work required at the Jones store with respect to ordering and replacing the sprinkler heads?

'A. Yes.

'Q. In fact your company often did this type of work up to and including October, 1968, isn't that right?

'A. That's right.

'Q. In fact you had every intention of performing the work yourself when

Page 252

Jones went into the agreement with you, isn't that right?

'A. That's right.

'Q. They ordered the heads through you and contracted with you to install them, isn't that true?

'A. There was no contract.

[157 W.Va. 263] 'Q. Whatever agreement there was, you understood that for a price Jones would pay you and you would do the installation, isn't that right?

'A. Right.

'Q. And didn't you know that Jones was relying upon you to provide the heads and to do or provide the installation?

'A. That was the intention.

'Q. And isn't it also true, Mr. Tonry, that you or your company knew of the purpose for which the heads were intended, why the heads were to be installed?

'A. That's right.

'Q. You know that they wanted you to furnish them with the heads which were intended to do the job which they were supposed to do, didn't you?

'A. That's right.'

At the time of the agreement, Wiedebusch intended to perform the necessary work involved in the replacement of the sprinkler heads. However, because it was no longer licensed nor equipped with sufficient number of experienced personnel, Wiedebusch was unable to undertake the work requested. Wiedebusch, therefore, hired Emsweller as subcontractor...

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21 practice notes
  • Hill v. Joseph T. Ryerson & Son, Inc., No. 14111
    • United States
    • Supreme Court of West Virginia
    • 6 Mayo 1980
    ...of fitness. The confluence of the two remedies is further demonstrated in Jones, Inc. v. W. A. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 201 S.E.2d 248 (1973). There, we considered the scope of the implied warranty Page 305 of merchantability under W.Va.Code, 46-2-314, which is anal......
  • Raab v. Smith & Nephew, Inc., CIVIL ACTION NO. 2:14-cv-30279
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 15 Diciembre 2015
    ...goods; and (3) the goods were unfit for the particular purpose intended. Syl. Pt. 2, Jones, Inc. v. Wiedebusch Plumbing & Heating Co. , 157 W.Va. 257, 201 S.E.2d 248 (1973). To distinguish this warranty from that described above, the official commentary to the statute emphasizes that the wa......
  • Totten v. Adongay, No. 16432
    • United States
    • Supreme Court of West Virginia
    • 30 Octubre 1985
    ...202 S.E.2d 622 (1974); Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); Jones, Inc. v. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 272, 201 S.E.2d 248, 256 (1973); Syl. pt. 1, Thomas v. Ramey, 156 W.Va. 191, 192 S.E.2d 873 (1972); Syl. pt. 1, Lambert v. Goodman, 147 W.......
  • Anderson v. Chrysler Corp., No. 19666
    • United States
    • Supreme Court of West Virginia
    • 15 Marzo 1991
    ...nature of the goods by circumstantial evidence." Syllabus Point 5, as modified, Jones, Inc. v. W.A. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 201 S.E.2d 248 Richard E. Hamstead, Edward R. Kohout, Hamstead, Hamstead & Williams, Morgantown, for Gary W. Anderson and Rebecca S. Anderson......
  • Request a trial to view additional results
21 cases
  • Hill v. Joseph T. Ryerson & Son, Inc., No. 14111
    • United States
    • Supreme Court of West Virginia
    • 6 Mayo 1980
    ...of fitness. The confluence of the two remedies is further demonstrated in Jones, Inc. v. W. A. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 201 S.E.2d 248 (1973). There, we considered the scope of the implied warranty Page 305 of merchantability under W.Va.Code, 46-2-314, which is anal......
  • Raab v. Smith & Nephew, Inc., CIVIL ACTION NO. 2:14-cv-30279
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 15 Diciembre 2015
    ...goods; and (3) the goods were unfit for the particular purpose intended. Syl. Pt. 2, Jones, Inc. v. Wiedebusch Plumbing & Heating Co. , 157 W.Va. 257, 201 S.E.2d 248 (1973). To distinguish this warranty from that described above, the official commentary to the statute emphasizes that the wa......
  • Totten v. Adongay, No. 16432
    • United States
    • Supreme Court of West Virginia
    • 30 Octubre 1985
    ...202 S.E.2d 622 (1974); Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); Jones, Inc. v. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 272, 201 S.E.2d 248, 256 (1973); Syl. pt. 1, Thomas v. Ramey, 156 W.Va. 191, 192 S.E.2d 873 (1972); Syl. pt. 1, Lambert v. Goodman, 147 W.......
  • Anderson v. Chrysler Corp., No. 19666
    • United States
    • Supreme Court of West Virginia
    • 15 Marzo 1991
    ...nature of the goods by circumstantial evidence." Syllabus Point 5, as modified, Jones, Inc. v. W.A. Wiedebusch Plumbing & Heating Co., 157 W.Va. 257, 201 S.E.2d 248 Richard E. Hamstead, Edward R. Kohout, Hamstead, Hamstead & Williams, Morgantown, for Gary W. Anderson and Rebecca S. Anderson......
  • Request a trial to view additional results

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