McCarty v. E. J. Korvette, Inc., 1102

CourtCourt of Special Appeals of Maryland
Writing for the CourtDAVIDSON
Citation18 UCC Rep.Serv. 14,28 Md.App. 421,347 A.2d 253
Parties, 18 UCC Rep.Serv. 14 Frances McCARTY et vir v. E. J. KORVETTE, INC., et al.
Docket NumberNo. 1102,1102
Decision Date03 November 1975

Page 421

28 Md.App. 421
347 A.2d 253, 18 UCC Rep.Serv. 14
Frances McCARTY et vir
E. J. KORVETTE, INC., et al.
No. 1102.
Court of Special Appeals of Maryland.
Nov. 3, 1975.

[347 A.2d 256]

Page 422

J. Hardin Marion, Baltimore, with whom was Thomas A. Baker, Baltimore, on the brief for appellants.

J. Joseph Curran, Jr., Baltimore, for appellee E. J. Korvettes, Inc., E. Charles Dann, Jr., Baltimore, with whom was James D. Peacock, Baltimore, on the brief for appellee Tires Inc.

Phillips L. Goldsborough, III, John G. Prendergast, Jr., and Smith, Somerville & Case, Baltimore, on the brief for appellee Denman Rubber Mfg. Co.

Argued before GILBERT, DAVIDSON and MOORE, JJ.


On 25 February 1971, Frances McCarty bought four tires manufactured by Denman Rubber Manufacturing Co., at Korvettes Tire & Auto Centers, a retail outlet located on Baltimore National Pike, which was allegedly operated, pursuant to a franchise and lease from E. J. Korvette, Inc., by Tires, Inc. On the back side of the invoice given to Mrs. McCarty, under the title 'Korvette Tire Centers All-Road-Hazards Tire Guarantee,' the following language appears:

'The tires identified hereon are guaranteed for the number of months (or miles) designated (36,000 miles) against all road hazards including stone bruises, impact bruises, blow out, tread separation, glass cuts and fabric breaks, only when used in normal, non-commercial passenger car service. If a tire fails to give satisfactory service under the terms of this guarantee, return it to the nearest Korvette Tire Center. We will replace the tire charging only the proportionate part of the sale price for each month elapsed (or mileage used) from date of purchase, plus the full federal tax.

'The above guarantee does not cover tires run flat, or simply worn out; tires injured by a fire, collision, vandalism, misalignment or mechanical defects of the vehicle. Radial or surface fissures, discoloration or ordinary repairable punctures, do not render tires unfit for service. Punctures will be repaired free.

'Neither the manufacturer nor Korvette Tire Centers shall be liable for any consequential damage and our liability is limited solely to replacement of the product.' (Emphasis supplied.)

On 14 June 1971, the appellants, Frances McCarty and her husband, Warren McCarty (consumers) were involved in an automobile accident. As a result of an alleged blowout of the right rear tire, their vehicle swerved off the road and turned over several times causing personal injury to each of them

Page 424

as well as property damage to their car. In the Circuit Court for Baltimore County, the consumers sued E. J. Korvette, Inc., Tires, Inc., and Denman Rubber Manufacturing Co., the appellees, for damages resulting from their alleged breach of express and implied warranties and negligence. At the conclusion of the consumers' case, Judge John Grason Turnbull granted the appellees' motions for directed verdicts. On 4 November 1974, final judgment was entered. It is from that judgment that this appeal is taken.

[347 A.2d 257] I

The appellees initially contend that the language contained in the Korvette Tire Centers All-Road-Hazard Tire Guarantee, when read as a whole, does not constitute an express warranty against blowouts, but rather constitutes a guarantee that if a blowout occurs, the tire will be replaced. We do not agree.

Maryland Annotated Code, Comm.L.Art., § 2-313 (1975) 1 (hereinafter referred to as Comm.L.Art.), defines an express warranty, in pertinent part, as follows:

'(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.' 2

Page 425

In considering the definition of an express warranty, the Court of Appeals long ago recognized the distinction which exists between an express warranty and an executory promise or contractual undertaking. In White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617 (1913), it was alleged, in a special count, that the seller represented to the buyer of an automobile that:

'said automobile was sound, free from defects in workmanship, and materials, and would be satisfactory to the plaintiff, and that said defendants would keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase.' Id. at 254, 86 A. at 619. (Emphasis in original.)

In the same count, the buyer alleged that the contract had been breached because the automobile was 'unsound and defective as to workmanship and material,' and 'constantly required repairs,' and because the sellers failed and refused to put the car 'in good order and repair.' The Court of Appeals held that a demurrer to this count should have been sustained, stating:

'The count combines two distinct causes of action; first, a breach of the express warranty that the automobile 'was sound, free from defects in workmanship and material, . . .'; and secondly, a breach of a contract on the part of the defendants 'to keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase." Id. at 256, 86 A. at 619.

The Court then concluded that the two separate causes of action should have been pleaded in separate counts.

The Court thus recognized that language relating of the existing qualities, capabilities and condition of goods constituted

Page 426

an express warranty. Language promising that the seller would repair goods in the event of a breach of the warranty, did not relate to the existing qualities, capabilities or condition of the goods, and, consequently, did not constitute an express warranty, but rather an executory contractual undertaking to be performed in the future.

[347 A.2d 258] In the case of Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 98 A. 361 (1916), 3 it was alleged that the seller represented to the buyer of a truck that it:

'was a first class car, was as good as new and was in sound and first class condition; and that if it was not abused but handled with care, it would last the plaintiff at least four years.' Id. at 104, 98 A. at 362. (Emphasis added.)

The breaches charged in the same count were that the truck was 'unsound and in bad condition' and 'did not last the plaintiff at least four years.'

In Rittenhouse, as in White, a demurrer was filed, contending that the special count for breach of warranty was improper because the assurance as to the serviceability of the truck for the period of four years was not a warranty, but, at most, an executory undertaking which could not properly be combined in one count with the warranties as to the truck's quality and condition. In considering the applicability of White, the Court said:

'In that case, however, the averment held objectionable, when made in combination with the breach of warranty declared on in the same count, was that the defendants failed to perform their agreement to keep the automobile sold by them to the plaintiff in satisfactory running order, without expense to him for one year from the date of the purchase. This assumption of an affirmative contractual duty was essentially different from the representation here relied upon as to the time

Page 427

during which the motor truck was capable of rendering efficient servoce. The assurance to that effect was not an executory promise, but had reference to an existing quality or capacity, and was hence closely akin to the other representations with which it was joined. In our opinion the demurrer was properly overruled.' Id. at 104-05, 98 A. at 362. (Emphasis added.)

Thus, the Court of Appeals reasserted its previously drawn distinction between an express warranty and an executory promise. An assurance that a truck would perform in a certain way for a given period of time in the future constituted an express warranty because it had reference to the existing quality, capacity or condition of the goods. An assurance that the seller would, at some time in the future, perform certain services in the event that the goods should not conform to the representation, so that the warranty was breached, constituted an executory promise or contractual undertaking because it had reference, not to the existing quality, capacity or condition of the goods, but rather to the assumption of an affirmative contractual duty to be performed on the future.

There is nothing in the language of Comm.L.Art., § 2-313 which requires a departure from these basic principles which were applied under both the common law and the Uniform Sales Act. Applying these principles to the instant case produces a clear result.

Here the language on the invoice given to the buyer to the effect that 'the tires identified hereon are guaranteed for 36,000 miles . . . against all road hazards, including . . . blow out . . .' constitutes an affirmation that the tires are of such existing quality, capacity and condition as to make them capable of rendering service without blowing out before they have been used for 36,000 miles. This assurance of the serviceability of the tires for a given number of miles, because it is a representation as to the existing quality, capacity and condition of the tires, constitutes an express warranty that the tires will not blow out during the first 36,000 miles of use.

Page 428

Questions remain as to what impact the additional language appearing on the invoice has upon the scope and extent of the express warranty. Comm.L.Art., § 2-[347 A.2d 259] 316 4 specifically recognizes a right on the part of the warrantor to negate, modify or limit an express or implied warranty under certain circumstances. It also implicitly recognizes that warranties may be limited in two different ways-one by 'disclaiming' the warranty or a...

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