McCormick v. Diamond Shamrock Corp., 24525
| Decision Date | 23 August 1971 |
| Docket Number | No. 24525,24525 |
| Citation | 175 Colo. 406,487 P.2d 1333 |
| Parties | Tom McCORMICK, Plaintiff in Error, v. DIAMOND SHAMROCK CORPORATION, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward C. Hastings, David M. Bryans, Denver, for plaintiff in error. Tilly & Graves, Ronald O. Sylling, William H. Haring, Denver, for defendant in error.
This writ of error is brought by McCormick from a trial court ruling entering a summary judgment against him. The plaintiff in error will be referred to by name, the defendant in error as Shamrock.
As there was no fact finding process employed in the case, the following statement of facts is taken from the pleadings, interrogatories, and answers thereto. Prior to the fertilizing season of 1964, McCormick entered into negotiations with one Busby to arrange for fertilization of half his farm. He decided to allow the man who had done it for the preceding years to do the other half, so he could make a comparison for the future. Busby wanted an opportunity to gain McCormick's business. Busby allegedly told McCormick that the fertilizer he handled (Shamrock) was the best, that they (Shamrock) would stand behind it, and that it was guaranteed. Busby's men came the same day as the other dealer, and they applied their products. The value of Busby's was $1783.60, plus an additional $246 application charge.
It soon became apparent that the ground fertilized with Shamrock's product as sold and applied by Busby was not growing corn, while the other section was flourishing. McCormick notified Busby of this, and refused to pay for the product and services. Busby assigned this account to Shamrock, which in turn brought this suit for the value of the fertilizer. McCormick answered admitting the purchase of the fertilizer, but denying any liability due to breach of 'an agreement for guaranteed results and warranty of fitness.' A counter claim was filed against Shamrock in the amount of $30,000 for loss of crop value. McCormick also filed a third party complaint against Busby alleging breach of warranty and improper application. This third party suit was severed, and is not before us at this time.
The counter claim alleged that at all times during the negotiations, Busby was the agent of Shamrock, acting within the scope of his employment. This allegation was denied in the reply. The reply also alleged that the bag containing the fertilizer had an express disclaimer of warranty on it, and that McCormick was so aware.
Four trial settings were vacated while the parties attempted to work out a settlement. They were apparently on the brink of doing so when the trial judge wrote a letter, dated October 4, 1969, to McCormick's attorney informing him that, 'Unless you make a showing why a summary judgment should not issue, it will issue, * * *' This was done despite the fact that no motion for summary judgment had been filed by either party and there were no affidavits to support the position of the plaintiff that there was no agency, and that there was no warranty, or that the bag contained a specific disclaimer. McCormick's attorney responded to the letter in pleading form, quoting to the judge R.C.P.Colo. 56(c), which...
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