Kirby v. Gibson Refrigerator Co.

• Court: Michigan Supreme Court
• Writing for the Court: BUSHNELL
• Citation: Kirby v. Gibson Refrigerator Co., 274 Mich. 395, 264 N.W. 840 (Mich. 1936)
• Decision Date: 31 January 1936
• Docket Number: No. 4.,4.
• Parties: KIRBY et al. v. GIBSON REFRIGERATOR CO.

274 Mich. 395

264 N.W. 840

KIRBY et al.

v.GIBSON REFRIGERATOR CO.

No. 4.

Supreme Court of Michigan.

Jan. 31, 1936.

Action by Lewis H. Kirby and others, copartners doing business as Good Housekeeping Shop, against Gibson Refrigerator Company. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Montcalm County; Royal A. Hawley, judge.

Argued before the Entire Bench.

Charles L. Dibble and Howard & Howard, all of Kalamazoo, for appellants.

Edward J. Bowman, of Grand Rapids, and Eldred & Gemuend, of Ionia, for appellee.

BUSHNELL, Justice.

Plaintiffs conduct a retail electric appliance business in the city of Kalamazoo, and defendant corporation is a manufacturer of refrigerators at Greenville. Desiring to add a low priced machine to their line of merchandise, plaintiffs bought from defendants on written contract 323 ‘modern’ electric refrigerators, consisting of ‘Rice’ cabinets and ‘Gibson’ units, at an average price of $65, totaling $20,995, paying $10,000 down and the balance later. Practically all the machines were sold in a short time by plaintiffs at prices ranging from $79.50 to $189.50. This action arises out of the fact that the ultimate buyers were not satisfied with the performance of the machines. According to plaintiffs' witness Vogt, ‘the trouble started just as soon as we started setting them up.’ After considerable correspondence, personal negotiations and attempts by both parties to remedy mechanical defects, plaintiffs tendered back the goods and demanded return of the purchase money with reimbursement for expenses and resulting damages. Defendant called attention to the limited warranty in the sales contract as to defective parts, denied any other obligation, and refused to make settlement, whereupon plaintiffs brought suit alleging fraud in the procurement of the sale and breach of warranties as to merchantability and fitness. Defendant moved for a derected verdict at the close of plaintiffs' testimony, but the trial court deferred its determination until the close of defendant's proofs and then directed the jury to find a verdict of no cause of action. Plaintiffs appeal from the judgment entered on the verdict.

A lengthy record was made covering all possible phases of the difficulties encountered in the servicing of the machines sold and rented. Defendant submitted testimony tending to show that the merchandise was that ordinarily sold by it, except that the cabinets were job lots and discontinued models. Since the real question is the propriety of the directed verdict, we need not discuss the controversy over performance, save to observe that it is apparent that plaintiffs, with some assistance from defendant,were kept well occupied attempting to satisfy their somewhat irate customers.

The controversial portions of the written contract, dated January 25, 1932, read:

‘The refrigerator cabinets are what are known as cabinets manufactured for the Rice Refrigerator Company and are sold at a special price to you, and in which have been installed Gibson Electric Refrigerating Units * * *

‘It is expressly understood that this sale is a complete sale and that you agree to take at least three hundred twenty three Modern Electric Refrigerators, and this contract is not subject to cancellation or modification in any way.

‘It is expressly understood that the electric refrigerating units shall not be known as or exploited as Gibson Electric Units, or the name Gibson or Gibson Manufacturer used in any way.

‘The Gibson Electric Refrigerator Corporation guarantee to replace, free of charge, f. o. b. factory, Greenville, Michigan, within six months from date of sale of Gibson Electric Refrigerator products, any part or parts defective in material or workmanship, returned, transportation charges prepaid, to it at Greenville, Michigan, which upon examination shall disclose to its satisfaction to be thus defective; Provided, however, that the determination as to whether any of said parts or part are defective in material or workmanship shall be determined by the Factory Inspection Department or direct representative of the Gibson Electric Refrigerator Corporation and in no case shall the liability under said guaranty exceed the price of the part replaced, as shown on the said Gibson Electric Refrigerator Corporation's current part price list. Changes in the use of devices or attachments of the machine or attachment therewith, or deviation from the published refrigerating capacity of any model when unauthorized by Gibson Electric Refrigerator Corporation automatically cancels this guarantee and releases the Gibson Electric Refrigerator Corporation from any and all responsibility.’

The contract is signed by defendant and plaintiff, but it will be noted that the guaranty is by another, the effect of which substitution we pass.

The trial court fittingly characterized this as ‘a close case’ and reasoning from, but not quoting, sections 15 and 16, the Uniform Sales Law (Comp.Laws 1929, §§ 9454, 9455), in the light of Dunn Road Machinery Co. v. Charlevoix Abstract & Engineering Co., 247 Mich. 398, 225 N.W. 592, 64 A.L.R. 947, held there was neither implied warranty as to fitness under the facts presented by the testimony, nor proof of fraud.

The Uniform Sales Act, adopted in this state in 1913 after five to six years' use elsewhere, while declaratory of the common law, does not attempt to take away the commonlaw right of the parties to contract and may properly be considered in determining the bearing of the acts of the parties on the terms of the contract. Cadillac Machine Co. v. Mitchell-Diggins Iron Co., 205 Mich. 107, 171 N.W. 479, and Hunt v. W. F. Hurd Co., 205 Mich. 142, 171 N.W. 373.

...