Kopet v. Klein

• Citation: 275 Minn. 525,148 N.W.2d 385
• Decision Date: 27 January 1967
• Docket Number: No. 40200,40200
• Parties: Alvin KOPET, Respondent, v. George KLEIN, dba Miracle Water Products, Appellant, Water Refining Company, Inc., Defendant.
• Court: Supreme Court of Minnesota (US)

Page 385

148 N.W.2d 385

275 Minn. 525

Alvin KOPET, Respondent, v. George KLEIN, dba Miracle Water Products, Appellant, Water Refining Company, Inc., Defendant.

No. 40200.

Supreme Court of Minnesota.

Jan. 27, 1967.

Syllabus by the Court.

1. The law allows a buyer a reasonable time in which to reject an article on the grounds of breach of warranty.

2. If, after acceptance of goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor. Where delay between the time that the buyer first gave notice to the seller and the time that the buyer's action was instituted was due to his indulgence and cooperation in the seller's attempts to remedy defects, this period may not properly be charged to the buyer as delay on his part in notifying the seller of defects.

3. An implied warranty is not one of the contractual elements of an agreement. It arises independently and outside of the contract, and is imposed by the law because of the acts of the parties. The doctrine of implied warranty is favored by this court, is to be liberally construed, and should be given effect when it is possible to do so.

Robert M. Greising, Waterville, for appellant.

Heinen & Christian, Le Center, for respondent.

OPINION

NELSON, Justice.

This is an appeal from an order of the trial court denying a motion of defendant, George Klein, doing business as Miracle Water Products, for judgment notwithstanding the verdict or for a new trial.

Defendant was the distributor of certain water-softening devices and equipment manufactured by Water Refining Company, Inc. The latter, however, was not served with a summons and complaint.

On March 19, 1964, defendant sold a water softener to plaintiff which was designed to regenerate automatically at pre-set intervals. The purchase price of the unit was $279 including installation. The water softener was installed at plaintiff's home by defendant and his local agent, Art Schuster, who set the various dials with which the softener was equipped so that the unit would function automatically.

The unit functioned properly for the first 2 weeks except that even for that period it consumed an excessive amount of salt. Plaintiff contacted Schuster and informed him of this difficulty. After trying at least a dozen times to make the machine work properly, Schuster told plaintiff that he couldn't handle the problem but would notify defendant. It appears that plaintiff himself didn't notify defendant directly about the difficulties plaintiff had been experiencing in the operation of the unit until 6 months after its installation. After receiving direct notice from plaintiff, defendant sent down one of his men, a mechanic, to inspect the unit. The mechanic adjusted the setting. For some time thereafter it appears that the unit would regenerate automatically, but at odd hours, and would overflow, causing damage to plaintiff's basement floor. During the 2 months preceding the trial the machine had to be started manually.

In March 1965 plaintiff's attorney advised defendant that the unit was not operating properly and that he should replace it or refund the purchase price. While the sale was made March 19, 1964, defendant admitted, when called for cross-examination under the rules, that he knew about the difficulties plaintiff was having during the month of March 1964. He also admits that in February 1965 he received a letter from the factory regarding the difficulty plaintiff was having with the softener and that in March he received the letter from plaintiff's attorney.

Plaintiff's claim against defendant is based in the main on Minn.St.1961, § 512.15(1), which provides:

'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment * * *, there is an implied warranty that the goods shall be reasonably fit for such purpose.'

It is plaintiff's claim that he purchased the water softener for use in his residence and that defendant was notified and knew of that purpose. Plaintiff also claims that he relied upon defendant's warranty that the unit would be fit and proper for such use, but that it was unfit in that it failed to reduce the hardness of the water and the iron in it; that the water softener under the circumstances was worthless; and that by reason of the failure of the machine to function and operate as warranted, plaintiff incurred expenses of $50 in an attempt to make it work properly, sustained damage of $100 to his personal property, and incurred interest charges of $30.41 on the purchase of the machine.

Defendant admits making the sale to plaintiff; that the machine used an abnormal amount of salt; and that it would not regenerate automatically. He also admitted that it would not overflow onto the floor if operating normally and that the machine was not operating properly when he was at plaintiff's residence in the fall following the installation and similarly a few days before the trial. He contends that the cuase of the difficulty on both occasions was that the dial regulating the amount of salt used in the softening process had been improperly set.

Defendant asserts that the court erred in instructing the jury that plaintiff could recover if defendant was negligent in the installation or servicing of the water-softening unit. From the record it appears quite clear that defendant tried his case in part on the theory that any damages sustained by plaintiff were the result of his own negligence, something not pleaded as a defense in the answer. This led the court to say to the jury:

'* * * (T)here is a claim here on the part of the defendant in this case that any damages sustained by the plaintiff were the result of his own negligence, and perhaps under the circumstances in this case in view of that fact you should have an instruction in that regard.

'Negligence on the part of any person is the failure on the part of such person to exercise such care as a person of ordinary prudence would have exercised under the same or similar circumstances. The amount of care which a person must exercise necessarily varies with the circumstances in which he is placed. * * *

'* * * To create a liability on the part of one charged with negligence it must appear not only that he was negligent but that such negligence on his part was the proximate cause of the damages resulting therefrom.

'You will be instructed specifically at the end of these instructions further on this matter, and the court does not wish to unduly emphasize this doctrine under the allegations in the pleadings and the claims of the respective parties, but, of course, if there was negligence on the part of the plaintiff and this negligence was a proximate cause of the ensuing damages sustained by him, then, of course, there could be no recovery on his part; * * * but, as will be instructed later, much of this matter is taken care of in the instructions on warranty, and it is only mentioned in explanation.'

The court thereafter instructed fully on express and implied warranty, saying in part:

'Where a purchaser expressly or by implication makes known to the seller the particular purpose for which the goods are required, and it appears that the purchaser relies on the seller's skill and judgment, there is an implied warranty that the goods shall be reasonably fit for such purposes. The fundamental basis for a seller's liability for breach of warranty arising out of a sales transaction is that the purchaser bought in justifiable reliance upon the seller's assertion and upon his skill and judgment.

'You are instructed that there was a duty on the part of the plaintiff to notify the defendant of any defective condition in the water softener within a reasonable length of time after determination of any defects, and failure to notify the defendant would relieve the defendant from any further damage.

'What is a reasonable time depends upon the facts of the particular case and is a question for the jury. In other words, a reasonable time under the circumstances of each particular case would be the time that an ordinarily prudent person would require to perform a certain act under such given circumstances.'

This was followed by a statement to the following effect:

'Now, of course, there is no warranty as to servicing of the water softener unit, but there could be negligence in servicing, and that will be for your determination.'

The reference to negligence in the instructions came into the case because defendant himself injected that issue in charging plaintiff with contributory negligence, and the court simply balanced the matter by explaining the meaning of negligence and its effect should the jury find from the evidence as a whole that there had been negligent conduct on the part of either plaintiff or defendant and his agents.

The liability of the seller to the buyer for negligence was very largely superseded by strict liability for breach of warranty under the Uniform Sales Act. Thus a breach of warranty giving rise to strict liability does not depend...