Marshall & Williams Co. v. General Fibers & Fabrics, Inc.

• Decision Date: 21 February 1978
• Docket Number: No. 20614,20614
• Citation: 241 S.E.2d 888,270 S.C. 247
• Court: South Carolina Supreme Court
• Parties: MARSHALL AND WILLIAMS COMPANY, Appellant, v. GENERAL FIBERS AND FABRICS, INC., Respondent.

Page 888

241 S.E.2d 888

270 S.C. 247

MARSHALL AND WILLIAMS COMPANY, Appellant, v. GENERAL FIBERS AND FABRICS, INC., Respondent.

No. 20614.

Supreme Court of South Carolina.

Feb. 21, 1978.

Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

Carter, Philpot, Johnson & Smith, Greenville, for respondent.

PER CURIAM:

This action was commenced by the appellant, Marshall and Williams Company, hereinafter referred to as plaintiff, to recover the sum of $8,614.26 remaining due on the sale of a tenter oven to the respondent, General Fibers and Fabrics, Inc., hereinafter referred to as defendant. The total purchase price of the oven was $102,000.00. Defendant answered the complaint, and counterclaimed on the theory of breach of express warranty. In its counterclaim, defendant alleged that it had "relied on an express warranty by the Plaintiff that the subject machinery would process the Defendant's material as required at a capacity of 100 feet per minute." Defendant further alleged that as a result of the breach of warranty, it had suffered consequential damages in the amount of $69,921.68, "in the form of additional operating expenses from the commencement of operation of the machinery through June 1, 1976."

The jury returned a verdict in favor of defendant on the counterclaim in the amount of $15,000.00, and found that plaintiff was in effect entitled to a $4,000.00 offset, leaving defendant with a net recovery of $11,000.00. Plaintiff appeals.

By appropriate exceptions, plaintiff contends, first, that the trial judge should have directed a verdict in its favor on the counterclaim. Secondly, it contends that if a jury issue existed, errors were committed by the judge in the conduct of the trial and a new trial should be granted.

Defendant is a manufacturer of carpet backing. It manufactures the product to which the pile of a carpet is attached. A tenter oven is used to heat-set the carpet backing, which is a process similar to sanforizing a shirt. This is a critical operation at the end of the manufacturing process, and the speed at which a tenter oven will process the carpet backing controls the entire operation of the factory. The basis of the counterclaim is that plaintiff expressly warranted that the tenter oven would process carpet backing at the rate of 100 feet per minute. Patrick Bova, chief executive officer and principal owner of defendant, testified that the tenter oven in question processed the backing at little more than half that speed, slowing down the entire factory operation.

In determining whether or not there was any evidence to go to the jury on the question of breach of express warranty, we must view the evidence in the light most favorable to defendant. We are not concerned with the quantity of the evidence, nor are we permitted to weigh the evidence. Our sole concern is whether there was any evidence from which the jury might conclude that there was an express warranty which was breached. We think that the testimony of Mr. Bova and the testimony of Melvin Kelly, taken as a whole, amply raised a jury question. Mr. Bova testified on direct examination as follows:

"Q. (By Mr. Johnson) What need did you specify to Marshall and Williams in regard to the capacity of this machine?

"A. Sir, I didn't understand the question.

"Q. What requirements did you specify in making the purchase from Marshall and Williams?

"A. First of all, I advised them what width I need of the machine, the machine had to be a certain width, two hundred ten inches. The next thing was the speed of the machine, how fast I must run in order to be able to completely balance my production that came out from the other machines.

"Q. What speed did you specify?

"A. A hundred feet a minute."

He testified further:

"Q. (By Mr. Johnson) What representation did they make?

"A. They have indicated to me that they have built a similar machine before and they are capable of delivering to me a machine capable of meeting this criteria that I have set forth."

Having concluded that the trial judge did not err in submitting the case to the jury, we proceed to consider the other exceptions, which urge that errors occurred requiring a new trial.

The trial judge, over the objection of counsel for plaintiff, submitted the counterclaim to the jury on the theory of both breach of express warranty and breach of implied warranty. We agree with plaintiff that such was error. At several places in the counterclaim, defendant denominates the action as one for breach of express warranty. No mention is made of an implied warranty, and a study of the counterclaim fails to reveal allegations which would place plaintiff on notice that defendant was seeking relief on the basis of an implied warranty. We agree with defendant that one does not have to denominate his pleading, and if allegations appear in a complaint (or counterclaim) warranting relief, a verdict may be obtained without naming the cause of action. However, we are convinced that a breach of an implied warranty was not alleged. We therefore conclude that the trial judge erred in charging the law of implied warranty to the jury.

Plaintiff also argues that the trial judge erred in charging the jury as to the measure of damages. The trial judge charged that consequential damages were proper, and that "these could include lost profits ¹, increased operating costs, and so forth, if it is established by the greater weight of the evidence as being a direct consequence of a breach of warranty." He further charged that such damages

"would be restricted to a period during which the parties are making a bona fide effort to comply with any warranty, that is, to adjust or correct the machine and so forth, if such was in fact attempted and it would terminate at such time as a person of ordinary reason and prudence, situated as the defendant was situated, to realize that such efforts to bring the machine in compliance would be unsuccessful."

The traditional measure of damages for...