Madison-Kipp Corporation v. Price Battery Corporation

• Decision Date: 01 February 1933
• Docket Number: 335
• Citation: 311 Pa. 22,166 A. 377
• Parties: Madison-Kipp Corporation v. Price Battery Corporation, Appellant
• Court: Pennsylvania Supreme Court

166 A. 377

311 Pa. 22

Madison-Kipp Corporation v. Price Battery Corporation, Appellant

No. 335

Supreme Court of Pennsylvania

February 1, 1933

Argued January 5, 1933

Appeal, No. 335, Jan. T., 1932, by defendant, from judgment of C.P. No. 4, Phila. Co., March T., 1932, No. 8241, for plaintiff, for want of a sufficient affidavit of defense, in case of Madison-Kipp Corporation v. Price Battery Corporation.Affirmed.

Assumpsit on sales contract.Before FINLETTER, P.J., BROWN and HEILIGMAN, JJ.

The opinion of the Supreme Court states the facts.

Judgment for plaintiff for want of a sufficient affidavit of defense and damages assessed at $6,316.20.Defendant appealed.

Error assigned was judgment, quoting record.

Judgment of the court below is affirmed.

Philip Werner Amram, with him Edward I. Weisberg and Wolf, Block Schorr & Solis-Cohen, for appellant.-- The machine in question is accompanied by an implied warranty of fitness by reason of the fact that defendant expressly made known to the plaintiff the particular purpose for which the machine was required and defendant relied on plaintiff's skill.

There was an express warranty in the advertisement which became a part of the contract of sale: Montgomery F. & F. Co. v. Thread Milling Co.,282 Pa. 212;Keystone Mausoleum Co. v. Salzman,72 Pa.Super. 437.

The conditional sales agreement did not affect the warranty: Meyer v. Motor Co.,106 Ohio 328, 28 A.L.R. 986.

There was an express agreement by reason of the previous agreement: Wolverine Glass Co. v. Miller,279 Pa. 138.

Shippen Lewis, of MacCoy, Evans, Hutchinson & Lewis, with him Richard W. Ledwith, for appellee.-- Though the machine was for a special purpose, there was no implied warranty, for the buyer not only bought a designated machine but bought it by its trade name: Hill v. Taylor,304 Pa. 18.

The advertisement did not constitute an express warranty, for it stated no fact: Michelin T. Co. v. Schulz,295 Pa. 140.Nor does the affidavit of defense aver a breach of this warranty, even if it was a warranty.

The defendant cannot turn the written contract of sale into a contract of sale on approval, by evidence of negotiations preceding the contract and alleged to constitute express warranties: Gianni v. Russell,281 Pa. 320;Myers v. Gibson,304 Pa. 249;Hill v. Taylor,304 Pa. 18;East Coast Finance Corp. v. Linck,104 Pa.Super. 518.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE KEPHART:

This appeal is from a summary judgment entered for want of a sufficient affidavit of defense.Appellant, hereinafter called Price, manufactured storage batteries.It saw an advertisement in a trade journal of the Madison-Kipp Die Casting Machine, manufactured by appellee, hereinafter called Madison.It wished to ascertain if the machine could die cast the grids used in its battery.Correspondence led to an interview.Madison's standard operating machine could be adapted to varying dies by their insertion in the machine.It agreed to try to make a die which would cast the grids used by Price in its batteries.If successful Price was to pay the full cost of the experiment and manufacture; if not, it was to pay one-half the cost.

Two months later, in April, 1930, Price sent Madison a written order for a die or mould.It was described as a "Double Cavity Mould for 3/32" Battery Grid."The order also contained these words: "Mould to operate at a minimum speed of 4 shots a minute."

In February, 1931, Madison delivered to Price the "parts to be assembled for a die casting machine," -- that is, the operating machine, -- and in May, 1931, the president of Price executed a written conditional sales agreement to buy "One Madison-Kipp 10" X 14" Die Casting Machine, SerialNo. 754-33."The conditional sales contract contained no warranty of any kind, and had the following clause: "No verbal contract or agreement contrary to any of the terms conditioned in the foregoing contract has been made, and no change or modification in the foregoing contract shall be valid or of any force and effect unless reduced to writing and duly signed by the parties hereto."It thus appears two separate contracts were in effect, one for the mould or die and the other for the operating machine.Payment for the latter being refused, Madison brought suit to recover its purchase price.The affidavit of defense admitted the contract, delivery of the machine, and refusal to pay.Appellant then set forth, in addition to some matters we have related, the oral understanding that the machine would turn out four perfect grids per minute, fit for use in storage batteries.That after the machine and the die or mould were set up in the Price Company's plant, it was subsequently discovered that they would not produce the required grids at the specified speed or of proper quality; appellant thereupon gave notice of rescission of the contract and denied liability thereunder.As defendant had paid $833 or the full price of the mould or die, it set up a counterclaim for one-half of that sum.The court below gave judgment for the purchase price of the operating machine; whether defendant is entitled to a return of one-half the sum paid on the mould or die was left for further action.

Appellant contends that the case is not so clear as to warrant a summary judgment: Armstrong v. Connelly,299 Pa. 51;Eizen v. Stecker,295 Pa. 497, 500;Kunkel v. Aircraft Corporation,101 Pa.Super. 35.While it is the rule of these cases that a summary judgment should be entered only when the affidavit of defense clearly presents no meritorious defense, nevertheless when the affidavit does not present a legal defense to plaintiff's claim, judgment should be summarily entered, in the interest of the speedy administration of justice.It is argued that the vendees were entitled to abrogate the contract because of the breach of warranties either express or implied.

The court below held that the machine purchased was a patented machine or article, sold under a trade name.Appellant contends this was a question of fact for the jury and not one of law, and the court was in error in so holding.The pleadings may set forth sufficient uncontradicted facts from which it may be found that the article was sold under its patent or trade name and the court could permit no different finding by a jury.The statement of claim which sets forth the written contract, and certain averments of the affidavit, plainly shows that the machine was so sold.The affidavit of defense does not deny this.

The machine was sold as a "Madison-Kipp Die Casting Machine."The advertisement contained a picture of it.It is described in the contract as "One Madison-Kipp 10" X 14" Die Casting Machine, SerialNo 754-33."No further specifications were given.It is difficult to see how a trade name could be more aptly used to describe the particular product with all its various parts, just as though an automobile were ordered by model number.The machine in question was a standard article, though the dies used in it may have varied.Indeed, the difficulty from the beginning was whether there could be fitted into the machine a die which could do what Price wanted done.The sale was by the use of a name, size and number, and a jury ought not to be permitted to find that other than it was sold under its patented or trade name when there were no allegations to the contrary.Appellant cites American Mine Equipment Co. v. Butler...