Joseph v. Sears Roebuck & Co.

• Decision Date: 09 September 1953
• Docket Number: No. 16777,16777
• Citation: 224 S.C. 105,77 S.E.2d 583,40 A.L.R.2d 742
• Court: South Carolina Supreme Court
• Parties: , 40 A.L.R.2d 742 JOSEPH v. SEARS ROEBUCK & CO.

Page 583

77 S.E.2d 583

224 S.C. 105, 40 A.L.R.2d 742

JOSEPH v. SEARS ROEBUCK & CO.

No. 16777.

Supreme Court of South Carolina.

Sept. 9, 1953.

Price & Poag, Greenville, for appellant.

Hinson, Traxler & Hamer, Greenville, for respondent.

OXNER, Justice.

This is an action to recover damages for breach of an alleged oral warranty by appellant with respect to the safety of a pressure cooker sold to respondent. The trial resulted in a verdict for respondent in the sum of $2500.00. The major question for determination is whether the Court below erred in not granting a motion by appellant for a nonsuit, and later for a directed verdict, upon the ground that the alleged warranty was unenforceable because not in writing as required by the 5th clause of the 4th section of the Statute of Frauds, Section 11-101(5) of the Code of 1952, which provides that no action shall be brought to charge any person upon any oral agreement 'that is not to be performed within the space of one year from the making thereof'.

Although the record contains the entire testimony taken at the trial, we need only state the facts pertinent to the questions raised by the exceptions. In January, 1949, respondent bought a pressure cooker from appellant for $16.95, which was paid in cash. Among the representations which respondent alleged were made to and relied upon by her at the time of the sale, were that appellant's saleslady stated that said pressure cooker 'was safe in every respect' for use in cooking; 'that there was no danger whatever' in using it; and that in view of the safety devices thereon, 'no explosion was possible.' In support of the foregoing allegations in the complaint, respondent testified that having heard conflicting reports as to the saftey of pressure cookers, she specifically inquired whether there was any danger in such a utensil exploding, to which the saleslady replied: 'There is no possible danger in these things exploding.' She further testified that the saleslady told her that it was impossible for the cooker to 'blow up because Sears had this device on it that would go off at 35 lbs. pressure, that there was no way, shape or form for it to explode.' She said that she was wholly unfamiliar with the operation of pressure cookers and relied on the foregoing representations and warranties in making the purchase.

Respondent used this utensil rather regularly until November 23, 1950. While cooking dinner on that day, it exploded and as a result, respondent was burned, her stove demolished and the house considerably damaged. No question is raised as to the amount of the verdict.

Appellant strenuously denied ever making to anyone a warranty of the character claimed by respondent and offered testimony to the effect that an explosion of one of its pressure cookers could only result from improper care and use. All conflicts in the testimony have now been resolved by the verdict of the jury in favor of respondent, and we must assume on this appeal that an oral warranty was made as claimed by respondent and through no fault of hers, the utensil exploded within about two years after it was purchased, resulting in damages as found by the jury.

The only question for our determination is whether the oral warranty upon which this action is based is within the 5th provision of the 4th section of the Statute of Frauds. Appellant contends that the statute applies because the alleged warranty was impossible of performance within a year. In support of this contention, appellant offered testimony to the effect that with proper use, one of these pressure cookers would last from ten to fifteen years. However, one of its witnesses admitted that it was 'possible for one to wear out in a year', and another that she had heard of explosions occurring within a year.

The question of whether a warranty as to the quality or condition of a chattel must be in writing when the life of such article ordinarily extends beyond a year is an important one. If appellant's view is accepted, most oral warranties would be unenforceable. Although cases are legion sustaining a recovery of damages for breach of an oral warranty with respect to the condition or quality of chattels sold, no decision has been cited, and we have found none, holding that such warranty was unenforceable because it constituted an oral agreement which was not to be performed within one year from its making. The fact that the Statute of Frauds has never been raised in any of these cases is significant.

General statements to the effect that oral warranties made in connection with the sale of personal property need not be in writing will be found in numerous cases and textbooks. In Mechem on Sales, Volume, II, Section 1235, it is stated: 'In order to constitute an express warranty no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms; and it is not at all necessary that the word 'warrant' or 'warranty' shall be used.' (Italics ours). Again, in Section 1253, we find: 'A warranty, as such, is not required to be in writing. Even though the value of the goods was such as might have brought the contract to sell within the operation of the statute of frauds, the oral warranty will suffice. The defendant may, of course, contend that there was no sale because the statute was not complied with; but if there were a valid sale, as where, for example, there has been a delivery and acceptance sufficient to satisfy the statute, it is not necessary for the warranty to be in writing.' The following is taken from 77 C.J.S., Sales, § 308(b): 'It is not essential that a warranty in the sale of chattels be in writing; the contract of warranty may be valid whether oral or written.' To the same effect, see 46 Am.Jur., Sales, Section 313; Distillers Distributing Corporation v. Sherwood Distilling Company, 4 Cir., 180 F.2d 800; Woolsey v. Zieglar, 32 Okl. 715, 123 P. 164; Seale v. Schultz, Tex.Civ.App., 3 S.W.2d 563; Conkling v. Standard Oil Co., 138 Iowa 596, 116 N.W. 822.

The first question which suggests itself is whether a warranty of the character involved in this case constitutes an agreement within the purview of the statute now invoked. Does such an oral warranty constitute a promise of some act to be performed by the seller within the contemplation of the statute? Or does such a warranty mean that the promisor is not to do any act upon the happening of the event warranted against, but upon such happening liability arises by law without any act to be performed on his part? These are interesting questions which we shall not now undertake to decide. We shall assume that the warranty involved in this case is an agreement of such nature as to be within the contemplation of the statute.

It is well settled that the statute applies only to an agreement which cannot be performed within a year. In Cline v. Southern Rilway Co., 110 S.C. 534, 96 S.E. 532, 538, the Court quoted with approval the following from McPherson v. Cox, 96 U.S. 404, 416, 24 L.Ed. 746: 'In order to make a parol contract void it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.' In Weber v. Perry, 201 S.C. 8, 21 S.E.2d 193, 194, the Court said: 'There can be no dispute as to the well established principle that the statute applies only to those contracts which are impossible of performance within a year and that a contract on a contingency which may occur within the year need not be supported by a writing.' If there is a possibility of performance within a year, the agreement is not within the statute. The fact that performance within a year is highly improbable or not expected by the parties does not bring a contract within the scope of this clause. Accordingly, it has been held that a contract to employ another 'for an indefinite period [of time] so long as plaintiff's work was satisfactory' was not within the statute. Cline v. Southern Railway Co., supra, 110 S.C. 534, 96 S.E. 532. A similar conclusion has been reached as to an agreement which was construed by the Court as being one to 'employ the plaintiff for the rest of his natural life as long as he did his work in a satisfactory manner.' McGehee v. South Carolina Power Co., 187 S.C. 79, 196 S.E. 538, 541. Numerous other decisions of this Court illustrating the principles heretofore stated could be cited. There is an interesting review of the English cases in Warn v. Texas & P. R. Co., 164 U.S. 418, 17 S.Ct. 147, 41 L.Ed. 495. Among them was one holding that an oral agreement by which the defendant promised, for one guinea paid, to pay the plaintiff so many at the day of his marriage was not within the statute, although the marriage did not take place within the year. The Court said that marriage might have happened within a year after the agreement. Another English case reviewed held that a promise to pay so much money upon the return of a certain ship, which ship happened not to return within two years after the promise made, was not within the statute, 'for that by possibility the ship might have returned within a year; and although by accident it happened not to return so soon, yet, they said, that clause of the statute extends only to such promises where, by the express appointment of the party, the thing is not to be performed within a year.' Anon., 1 Salk, 280.

It is also uniformly held that the statute does not apply when by the happening of a contingency the defendant may be required to perform his contract within a year. In Gadsden v. Lance, McMul.Eq. 87, the Court said: 'It is equally well settled that when the agreement is to be performed on a contingency, which may or may not happen within the year, a note in writing is not necessary, unless it appears from the agreement that it was to be performed after the year.' To the same effect, see Thompson v. Gordon, 3 Strob. 196; Walker v. Wilmington, C. & A. Railroad...