McKendrie v. Noel

• Decision Date: 15 May 1961
• Docket Number: No. 19029,19029
• Citation: 362 P.2d 880,146 Colo. 440
• Parties: Samuel M. McKENDRIE, d/b/a Mar-Mak Manufacturing Company, Plaintiff in Error, v. Rubin A. NOEL, d/b/a Colorado Carpet Cleaning Company, Defendant in Error.
• Court: Colorado Supreme Court

Page 880

362 P.2d 880

146 Colo. 440

Samuel M. McKENDRIE, d/b/a Mar-Mak Manufacturing Company, Plaintiff in Error, v. Rubin A. NOEL, d/b/a Colorado Carpet Cleaning Company,

Defendant in Error.

No. 19029.

Supreme Court of Colorado, En Banc.

May 15, 1961.

Kenneth A. Selby, Denver, for plaintiff in error.

Thomas K. Loughlin, Theodore J. Adams, Denver, for defendant in error.

DOYLE, Justice.

Plaintiff in error was plaintiff in the trial court, and defendant in error was defendant. We shall refer to the parties as they there appeared.

Plaintiff's action was based on a conditional sales contract for the purchase of certain automatic rug cleaning machinery. He demanded judgment against defendant in the amount of $5,195, the alleged balance due under the contract. In the alternative, he sought possession and sale of the chattels, the entry of a money judgment for the deficiency, if any, which shall arise between the sum owed by defendant to plaintiff and costs as aforesaid, and the sum obtained through the sale of said chattels.

Issue was joined; defendant admitted plaintiff's right to possession of the chattels; alleged that only a portion of the chattels contracted for were delivered by plaintiff, and filed a 'counterclaim' for the return of $1,000 paid when the conditional sales contract was executed and damages in the sum of $7,909.26 for losses sustained by him on account of the misrepresentations made by plaintiff concerning said machine.

Trial to the court resulted in an award of possession of the chattels to plaintiff and judgment against plaintiff in favor of defendant on his counterclaim in the sum of $7,182.22. Plaintiff seeks review of this latter judgment.

Briefly stated, the facts are that defendant saw plaintiff's advertisement in a trade journal offering for sale an automatic rug cleaning machine or apparatus. This advertisement is hereinafter referred to as Exhibit 'G'. Defendant went to Danville, Illinois to interview plaintiff after telephonic communications between the parties. On February 12, 1957, the parties signed a conditional sales contract, a standard order and conditional sale contract of the Mar-Mak Manufacturing Company, contemplating delivery of the machine to defendant within ninety days after February 12, 1957, and providing for 'operation satisfactorily'. Delivery was delayed, but finally a portion of the equipment was received by defendant in December, 1957. Following attempted installation plaintiff came to Denver to observe the operation of the machine, at which time defendant directed plaintiff's attention to the unsatisfactory manner in which the machine performed. Attempts by defendant to perfect its operation were unsuccessful. On May 6, 1958, defendant demanded that plaintiff remove the machine and on June 18, 1958 plaintiff, through his counsel, demanded a return of the chattels. On June 27, 1958, the instant action was commenced.

The trial court entered findings and conclusions in which it determined that defendant was induced to enter the contract 'relying upon representations as to the efficiency and satisfactory operation of the aforesaid equipment'; that the plaintiff failed to perform 'the promises contained in said contract which (1) required installation within 90 days of the signing of the contract, (2) required that the subject matter of the contract be installed and operating satisfactorily; and that said promises were conditions precedent to be performed before plaintiff could demand the balance of moneys allegedly due from defendant * * *; that defendant fully performed all conditions required of him up to the time when plaintiff failed and continued to fail in performing conditions precedent required of plaintiff under the terms of the contract.' The damages awarded to defendant were actual out of pocket expenditures which were made by him in consequence of the transaction.

The points relied on by plaintiff in seeking reversal are set forth in his summary of argument as follows:

'1. Defendant did not rely upon representation of plaintiff.

'2. Error was committed by the trial Court in admission of Defendant's 'Exhibit G' and the use said exhibit was put to by the Court.

'3. Operation satisfactorily did not vest in defendant an absolute defense.

'4. The court committed error in writing into the contract a provision for F.O.B.'

I.

In support of his argument that defendant did not in fact rely on his representations and warranties, plaintiff points to the fact that defendant visited his plant, saw a...