Marcil v. John Deere Indus. Equipment Co.

• Decision Date: 24 April 1980
• Citation: 403 N.E.2d 430,9 Mass.App.Ct. 625
• Parties: , 28 UCC Rep.Serv. 1311 Jon MARCIL v. JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY et al.
• Court: Appeals Court of Massachusetts

Page 430

403 N.E.2d 430

9 Mass.App.Ct. 625, 28 UCC Rep.Serv. 1311

Jon MARCIL v. JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY et al.

Appeals Court of Massachusetts, Hampden.

Argued Feb. 13, 1980.

Decided April 24, 1980.

Louis Kerlinsky, Springfield, for plaintiff.

Philip J. Callan, Jr., Springfield, for John Deere Industrial Equipment Co.

Before HALE, C. J., and GRANT and NOLAN, JJ.

HALE, Chief Justice.

The plaintiff appeals from judgments entered following the allowance of motions by the defendants John Deere Industrial Equipment Company (Industrial) and John Deere Dubuque Works (Dubuque) for directed verdicts on all counts against them, and from action taken on the plaintiff's motions to amend his complaint before the trial. The record before us contains some of the exhibits and designated portions of the transcript of the testimony. We summarize that evidence in the light most favorable to the plaintiff.

The plaintiff was self-employed in the excavation business in 1970 and was in the market for a loader for use in his business. A loader is a four-wheel vehicle with a front bucket used for digging, earth moving and loading. Various companies demonstrated their loaders to the plaintiff, and he went to Lomac Equipment Co., Inc. (Lomac), ¹ to see the John Deere model 644 wheel loader. The plaintiff obtained a promotional brochure from Lomac. The brochure, which was introduced in evidence, contained general statements about the advantages of the John Deere construction equipment line and emphasized the desirable features of the model 644 loader. ² The plaintiff purchased a model 644 wheel loader on December 21, 1970. On the face of the purchase order was the statement: "The Warranty on the reverse side is a part of the contract. Neither seller (Lomac), John Deere Industrial Equipment Company, nor the manufacturer makes any other representations or warranties, express or implied (AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS) or has any obligation to the Purchaser except as provided on the reverse side." The plaintiff's signature appears under the statement. The warranty on the reverse side was limited to a warranty by Industrial to replace or repair parts defective in materials or workmanship for a period of twelve months or 1,500 hours of operation, whichever should first occur. The warranty stated: "Neither John Deere (Industrial) nor any company affiliated with it makes any warranties, representations, or promises, express or implied, as to the quality or the performance of its products other than those set forth above and DOES NOT MAKE ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS." Lomac, Industrial and the latter's affiliates also disclaimed liability for incidental and consequential damages, including loss of profits, rental of substitute equipment or other commercial loss. The loader was designed and manufactured by Dubuque.

From the time of purchase until November, 1972, the plaintiff experienced no difficulty with the loader which was related in any way to any of the claims for which the plaintiff now seeks recovery. He used it without incident in accordance with the manual and operator's instructions for loading, excavation and snowplowing, giving it "very good care." In November, 1972, he began to experience difficulty with the valve that controlled the operation of the bucket. The valve was sticking, and the loader suffered a loss of the downward pressure needed for digging. At about that time, the valve exploded. The valve was removed and returned to Lomac for repair. When that failed to end the problem, the entire loader was returned to Lomac. Several attempts were made to repair it, but the problem continued. On January 3, 1973, Lomac disassembled the machine and found that there was "an imperfection on an expanded area" in the lower ends of the "boom cylinders." Lomac replaced the cylinders. During the period of repair, the plaintiff was unable to use the loader to perform work he had agreed to perform. He was billed by Lomac for the repair work done.

Answers to interrogatories filed by Industrial and Dubuque which were in evidence indicate that the boom cylinders used in the plaintiff's loader were later redesigned and replaced with cylinders with increased thickness at the turned down end. This change was made "to eliminate the cylinder barrel from deforming into the cavity of the head casting and the resulting piston seal failures . . . ." Dubuque stated that from January 1, 1969, until July 1, 1973, it had received seven warranty claims requesting replacement of an entire lift cylinder, twenty-four claims for replacement of cylinder barrels and head assemblies, and twenty-three claims for replacement of piston packings.

The plaintiff presented testimony by an expert, who concluded that the failure of the plaintiff's cylinders had occurred because the thickness of the cylinder wall was not uniform and the cylinders were not strong enough to withstand the pressures to which they were exposed. This problem was not one which the consumer could discern without disassembling the machine. The expert stated that in his opinion the cylinders were not designed in accordance with good engineering practice.

The Warranty Counts.

Three counts of the complaint against Industrial and one count against Dubuque allege, in effect, that the defendants warranted the merchantability or the fitness of the loader, that the plaintiff relied on those warranties, and that the warranties were breached. The judge ordered a directed verdict for the defendants on all four counts. In his rambling brief, replete with obfuscation, the plaintiff refers to these counts variously as claims for breach of express and implied warranty, misrepresentation, deceit, and claims for violation of G.L. c. 93A. Nothing in the record presented to us indicates that the counts were tried, or argued to the judge, as anything but warranty claims. The defendants' motion for directed verdicts lists six grounds, all of which relate only to a warranty theory of the case. One of the grounds accepted by the judge was: "The evidence establishes as a matter of law that this is a nonconsumer transaction, and that by written terms of the purchase order and other documents executed by plaintiff, there was a written disclaimer of any express warranty or any implied warranties of fitness and merchantability except as provided therein, which disclaimer was in compliance with G.L. c. 106, § 2-316, wherefore plaintiff cannot recover in breach of warranty, otherwise than provided therein."

The directed verdicts were appropriately ordered. The warranty printed on the purchase order was offered to the plaintiff expressly by Industrial and was accepted by him. In that express warranty, Industrial, and through it, the manufacturer, Dubuque, disclaimed all other warranties, express or implied. Assuming that the express warranty thus accepted created privity of contract between the plaintiff and either or both of the defendants, then it is clear that under the terms of the warranty, the plaintiff cannot recover. There is no indication, as the plaintiff argues, that the disclaimers were unconscionable under G.L. c. 106, § 2-302. If, however, there was no privity, the plaintiff would have no warranty claim against the defendants. Necktas v. General Motors Corp., 357 Mass. 546, 549, 259 N.E.2d 234 (1970). The plaintiff does not benefit from the enactment of St.1971, c. 670, § 1, which amended G.L. c. 106, § 2-318, and eliminated the defense of privity to an action for breach of warranty, because he purchased the loader before the effective date of the statute. St.1971, c. 670, § 2. Hoffman v. Howmedica, Inc., 373 Mass. 32, 36, 364 N.E.2d 1215 (1977).

Even if the vaguely worded allegations of the plaintiff's complaint might be said to state claims for deceit or for violation of G.L. c. 93A, and even if the evidence might have supported such claims, the plaintiff cannot for the first time urge these characterizations of his claims upon this court, as he has failed to demonstrate to us that he gave the judge any indication that the counts were to be considered as such. Henchey v. Cox, 348 Mass. 742, 747, 205 N.E.2d 715 (1965). See Mahaney v. John Hancock Mut. Life Ins. Co., 6 Mass.App. --- ^a, 380 N.E.2d 140 (1978).

The Negligence Counts.

Verdicts were also directed against the plaintiff on separate counts against Industrial and Dubuque for negligently and carelessly manufacturing the loader and sending it into commerce. The directed verdicts were proper because the plaintiff has neither alleged nor shown that he suffered the type of damages which he would need to prove in order to maintain an action for negligence.

In McDonough v. Whalen, 1 Mass.App. 573, 577, 304 N.E.2d 199, 201 (1973), Id. 365 Mass. 506, 313 N.E.2d 435 (1974), we stated, "In the absence of personal injury or physical damage to property, the negligent supplier of defective products is not ordinarily liable in tort to a purchaser for simple pecuniary loss caused by defective or inferior merchandise" (citation and footnotes omitted). In that case the plaintiffs claimed damages resulting from a negligently designed and installed septic system. In reversing our decision the Supreme Judicial Court expressly refrained from deciding whether the rule quoted above was correct, because it found that the flow of sewage onto the plaintiffs' land did in fact cause physical damage to the land. McDonough v. Whalen, 365 Mass. at 513, 313 N.E.2d 435. In this case the plaintiff has alleged that the defendants' negligence caused him "severe losses in his business and good will." There has been no suggestion of personal injury or of damage to any property other than to the loader itself. The only damages shown on the record before us are the cost of repair and loss of use of the loader. The loss of use of the loader is clearly "pecuniary," or economic loss which,...