Meyers v. Antone

• Decision Date: 07 March 1967
• Docket Number: No. 4006.,4006.
• Citation: Meyers v. Antone, 227 A.2d 56 (D.C. 1967)
• Parties: Joseph A. MEYERS and Jack S. Poms, Appellants, v. George ANTONE and Jacqueline Antone, Appellees.
• Court: D.C. Court of Appeals

Page 56

227 A.2d 56

Joseph A. MEYERS and Jack S. Poms, Appellants, v. George ANTONE and Jacqueline Antone, Appellees.

No. 4006.

District of Columbia Court of Appeals.

Argued January 16, 1967.

Decided March 7, 1967.

Isadore B. Katz, Washington, D. C., for appellants.

George Bronz, Washington, D. C., for appellees.

Before HOOD, Chief Judge, MYERS, Associate Judge, and QUINN (Associate Judge, Retired).

QUINN, Judge.

The controversy before us centers around the following provision contained in a contract of sale for improved realty: "Heating plant to be functioning properly — Entire Unit." The contract was signed in March 1964 and the deed delivered in June of that year. In November appellees (purchasers) first noticed that the boiler leaked. They subsequently sued appellants for breach of warranty and recovered $780, the cost of purchasing and installing a gas heating system on the premises.

In order to render any judgment for appellees, the trial court had to find that there was a warranty; that it survived delivery of the deed; that there was a breach which was not waived; and that notice of the breach was given within a reasonable time. It then had to determine the proper measure of damages. For convenience, we shall deal with the elements of the case in the same order.

Appellants do not argue that the contractual language did not create a warranty. They do contend, however, that all warranties merged into the deed and that a suit on the contract was therefore improper. Their argument is untenable for two reasons. The face of the contract contained the following:

"(16) The principals to this contract mutually agree * * * that the provisions hereof shall survive the execution and delivery of the deed aforesaid and shall not be merged therein; * * *."

In addition, it is settled in this jurisdiction that covenants which are independent of the conveyance of title survive delivery of a deed. Libby v. Trako Builders, 100 U.S.App.D.C. 146, 243 F.2d 252 (1957); Haviland v. Dawson, D.C.App., 210 A.2d 551, 554 (1965). The warranty involved herein was one such independent undertaking.

Turning to the questions of breach and waiver, there is no dispute that when appellees first turned on the heating system in November 1964 they discovered the boiler was leaking. Appellants argue that appellees had both the duty and the opportunity to inspect the premises long before that date, and that by failing to do so they waived any possible breach.

The testimony adduced at trial shows that no inspection of the heating system was made until November although appellees had been given keys to the premises in March. The record also indicates, however, that appellants, who are in the real estate business, had purchased the property two months prior to its sale to appellees; that there was freeze damage to certain pipes and radiators; that they never ascertained whether the heating system was functioning properly; and that the premises were vacant when sold.

[3] The warranty in question stated that the heating plant was to be functioning properly. Appellants argue, however, that the risk of loss or damage to the system was on the purchasers after the contract was signed, and that the trial court had to find that a breach had occurred prior to March 1964. Assuming, arguendo, that this is a correct statement of the law, we hold that there was sufficient evidence from which the trial court could have found that the system was not in good working order when the contract was signed.

On the issue of waiver, the law is clear that a buyer may lose his cause of action for breach of warranty if he fails to notify the seller of the breach within a reasonable time. Campbell Music Co. v. Singer, D.C.Mun.App., 97 A.2d 340 (1953). This necessarily implies that he must inspect within a reasonable time, i.e., a time which would "be sufficient in the case of a man of ordinary intelligence and prudence under the circumstances of the case." P. H. Sheehy Co. v. Eastern Importing & Mfg. Co., 44 App.D.C. 107, 111, L.R.A. 1916F, 810 (1915). The question of reasonable time is ordinarily one of fact, unless all the circumstances lead to but one conclusion. Campbell Music Co., supra. Here, the issue was a factual one, and the record supports the trial court's finding of reasonableness. That finding precluded any argument that the breach had been waived by appellees' acceptance and retention of the system. Furthermore, it was not unreasonable for them to use the system while attempting to secure a replacement since notice had been given and no additional damages were incurred. Such use did not constitute a waiver.

Appellants' final argument is that the trial court erred because it applied the wrong measure of damages. We agree.

The record shows that the heating plant in question was of the coal-converted-to-oil type, and consisted of a boiler, a motor unit and a thermostat. The boiler was estimated to be between twenty-five and forty years old. Subsequent to the breach, appellees installed a new gas heating plant (including thermostat) which had a greater heating capacity than the oil system. The total cost was $780, the amount of the judgment herein.

The general rule of damages for a breach of warranty has been variously stated. In Fries, Beall & Sharp Co. v. Livingstone, 56 App.D.C. 209, 12 F.2d 150 (1926), the court recognized that damages were ordinarily measured by the difference between the actual value of the article sold and what it would have been worth had it been as warranted. It further stated that under a breach of contract, whether of warranty or otherwise, the defendant was liable for those damages which were the natural consequence and proximate result of his conduct. The applicable Code provisions contain similar standards and further provide that special circumstances may permit a showing of proximate damages of a greater amount. D.C.Code § 28-1507 (6) and (7) (1961); compare D.C.Code § 28:2-714(2) (Supp. V, 1966). Furthermore we have held that where by reasonable expenditures the goods may be made to conform to the...