Lombard Corporation v. QUALITY ALUMINUM PROD. CO.

• Decision Date: 08 December 1958
• Docket Number: No. 13450.,13450.
• Parties: LOMBARD CORPORATION, Appellant, v. QUALITY ALUMINUM PRODUCTS CO., Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

261 F.2d 336 (1958)

LOMBARD CORPORATION, Appellant, v. QUALITY ALUMINUM PRODUCTS CO., Appellee.

No. 13450.

United States Court of Appeals Sixth Circuit.

December 8, 1958.

Franklin B. Powers, Youngstown, Ohio (Donald J. Libert, of Manchester, Bennett, Powers & Ullman, Youngstown, Ohio, on the brief), for appellant.

Frank H. Feingold, Max A. Samolar, of Persky & Loeb, Cleveland, Ohio, for appellee.

Before ALLEN, Chief Judge, and SIMONS and MILLER, Circuit Judges.

ALLEN, Chief Judge.

This appeal seeks reversal of a judgment of the District Court finding that defendant,¹ who sold to plaintiff an aluminum extrusion press, had breached the implied warranty of fitness under 1315.16(F), O.R.C., and awarding damages therefor.

The material facts are not in dispute and are as follows:

Defendant, a designer and builder of heavy equipment, in 1953 sold plaintiff a hydraulic aluminum extrusion press weighing about 85 tons and having a 1,500 ton capacity. The reasonable or expected life of the machine was ten years. The amount paid was $114,494. The installation of the press at plaintiff's plant was supervised by defendant's erecting engineer, who for a week instructed plaintiff's employees how to operate the press.

The machine is capable of exerting a force of 1,500 tons on a billet inserted therein for extrusion. The operation of the press may be briefly described as follows: an electric motor drives pumps which pump oil through pipes into a cylinder in which a ram or piston moves back and forth. The pressure of the oil against the piston creates a force on the cross-head which moves forward and engages a heated billet, causing the billet to swell and fill the billet container, from which it passes into the die.

Parts of the press particularly important here are the cylinder housing in the middle rear part and a platen located in the front. The force tends to move the front platen slightly away from the cylinder housing. In order to limit this motion four tie rods or columns, each weighing some 3,300 pounds, are located on the machine, two at the top and two at the bottom, extending from the cylinder housing to the front platen. The tie rods combined have a resisting force of 1,500 tons. The various parts of the press must be properly aligned and centered. The faces of the cylinder housing and of the platen must be parallel. Also, the load must be applied on the exact center of the tie rods. Among other things the stem, the billet container and the die must at all times be maintained on the exact center of the press. If concentric loading and proper alignment exist at all times the force will be equally distributed between the four tie rods.

Each rod is threaded at both ends and is attached to the platen by four nuts, the two outside nuts being locked during the operation. The diameter of the rods is 8¾ inches on the outside and 8 inches at the root of the threads. The rods are constructed of Society of Automobile Engineers 41-40 quality steel. 41-40 is a symbol adopted by the Society of Automobile Engineers to designate a medium carbon alloy steel containing manganese, chromium and molybdenum plus carbon, with a yield point of 70,000 pounds per square inch. The yield point is the critical point at which, due to continued and recurring stresses and strains, the metal takes on permanent deformation and eventually may fracture. The unit load was computed to be approximately 14,900 pounds per square inch of cross-sectional area. It was therefore calculated that the 41-40 steel employed in the rods with its 70,000 pound yield point afforded a safety factor of 4.7 to 1.

Plaintiff introduced evidence that it operated the machine normally in accordance with defendant's instructions and this was conceded by defendant's witnesses. For some nine months the press operated satisfactorily and then two of the tie rods broke, the break occurring at the root of the threads where the surface of the nut and the surface of the front platen engage. Defendant's expert witness stated that the root of the thread is always considered the weakest part of the rod and defendant's counsel concedes that this is the point where the tie rod would be expected to break.

As defendant was unable promptly to deliver replacement rods and plaintiff had many orders requiring prompt delivery, plaintiff remachined the original rods, shortening them, attaching half of a nut on each end, and replacing the rods in the same location as before. The outside nuts could not be locked, as they were originally, but by maintaining a vigilant check on alignment the press was operated satisfactorily for some ten months, the alignment being adjusted three or four times. Then two of the rods broke, the break again occurring at the root of the threads. It was shown that if one tie rod broke the press could not function. A new set of rods was built and installed, not by defendant but by another manufacturer. The new installation in all respects, including diameter of the rods, location, etc., conformed to the same design as that of the original machine except for the fact that the new rods were made of S. A. E. 43-40 steel. This has a higher tensile strength than 41-40 steel and it was conceded that it would afford a higher safety factor. Fifteen months later two of the new rods broke, the break once more occurring at the roots of the threads at the face of the platen where the nut meets the platen.

Plaintiff had made known to defendant the purpose for which the machine was to be used, namely, the constant extruding of aluminum, and relied upon defendant's superior skill and judgment. Therefore plaintiff based its action upon the implied warranty existing in such cases, that "goods shall be reasonably fit for" the purpose for which they were bought. Section 1315.16(A), Ohio R.C. An express warranty of material and workmanship made between the parties at the time of the sale had expired before the first breaking of the tie rods. Plaintiff conceded that there was no substantial defect in the material or workmanship of the rods. In the lower court defendant contended that the express warranty excluded the implied warranty under the terms of the Sales Act and the applicable law. However, the District Court held that the implied warranty of fitness was not inconsistent with the express warranty as to material and workmanship and that, therefore, under Section 1315.16(F), O.R.C., the implied warranty was in force. See 164 A.L.R. 1346, which states that, generally speaking, the express warranty against defective materials and workmanship "will not be held to exclude an implied warranty of fitness * * *." John A. Roebling's Sons Company v. Southern Power Company, 142 Ga. 464, 83 S.E. 138, L.R.A.1915B, 900; J. B....