Odell v. Frueh

• Decision Date: 03 December 1956
• Citation: 304 P.2d 45,146 Cal.App.2d 504
• Court: California Court of Appeals Court of Appeals
• Parties: , 76 A.L.R.2d 345 Loren W. ODELL, Grace L. Odell, L. W. Odell, Jr., Eileen Odell Pirkowitsch, and Thomas H. English, Trustee for Caroline Marie Odell, doing business as Odell Construction Co., Plaintiffs and Respondents, v. A. Franklin FRUEH, doing business as Alkall Neutralizer Co.; Doe One to Doe Ten, Defendants. E. R. Frueh (sued as Doe One), Appellant. Civ. 21749.

Page 45

304 P.2d 45

146 Cal.App.2d 504, 76 A.L.R.2d 345

Loren W. ODELL, Grace L. Odell, L. W. Odell, Jr., Eileen Odell Pirkowitsch, and Thomas H. English, Trustee for Caroline Marie Odell, doing business as Odell Construction Co., Plaintiffs and Respondents, v. A. Franklin FRUEH, doing business as Alkall Neutralizer Co.; Doe One to Doe Ten, Defendants E. R. Frueh (sued as Doe One), Appellant.

Civ. 21749.

District Court of Appeal, Second District, Division 2, California.

Dec. 3, 1956.

Rehearing Denied Dec. 31, 1956.

Hearing Denied Jan. 30, 1957.

Francis C. Jones, Los Angeles, for appellant.

Grant & Popovich, Los Angeles, for respondents. By Irvin Grant and George J. Popovich, Los Angeles.

MOORE, Presiding Justice.

Defendant appeals a judgment imposing liability for breach of warranty.

Appellant E. R. Frueh is the owner of a business conducted under the firm name of Alkali Neutralizer Co. which manufactures, sells and applies an anti-alkaloid known as the 'Ashford Formula' or 'Ashford Process.' A. Franklin Frueh, husband of appellant, is the person actively engaged in the conduct of the business. Respondents are partners doing business under the name of Odell Construction Company.

The Glendale Unified School District was planning to construct a building for an elementary school by means of what is known as 'tilt-up' construction. By such method, a slab of concrete is laid as the flooring of the building, an anti-bonding agent is applied, another slab of concrete is laid on top of the floor slab, and successive slabs are constructed in layers. After all the slabs have been poured, the top layers are 'tilted up' on their ends to form the walls of the structure, leaving the floor slab upon the foundation. Having learned of the planned building activity, Mr. Frueh contacted the authorities of the school district and suggested that the 'Ashford Formula' be specified for application upon the concrete floor of the proposed school in order to prevent the formation of alkali beneath floor covering material and as a cure for new concrete. Although advised that the tilt-up method was planned, Mr. Frueh assured the district's officials that the formula would not be harmful to any of the surfaces with which it might come in contract but that on the contrary the same could be used to advantage with the tilt-up technique.

When the school district informed the firm of architects retained to draw the plans and specifications of the new building that the 'Ashford Formula' should be specified, a member of the firm contacted Mr. Frueh for further information. The architects had not had prior experience with the use of the process sold by appellant. When appellant's husband was again advised that the construction was to be accomplished by the tilt-up method, he stated that (1) the Ashford Formula had been successfully used by the company on previous construction projects which involved tilt-up construction; (2) the formula would in no way interfere with the action of the anti-bonding agent to be applied between the successive slabs to prevent their adhesion; (3) the formula should be applied under the strict supervision of appellant's company upon the newly laid concrete just when the concrete should begin to harden. The architects relied upon such information by specifying that the product be used.

On April 21, 1954, respondents executed a contract with the school district and the county for the construction of certain classrooms of the proposed school. A portion of the specifications included in such contract required that the 'Ashford Process' as manufactured by the Alkali Neutralizer Company be purchased and applied 'in strict accordance with their recommendation.'

During the latter part of May or early June 1954, Mr. Frueh visited the construction site. He requested respondents' supervisor to inform him when the concrete was to be poured in order that he might direct the application of his anti-alkaloid. He told the supervisor that the formula had been successfully used on tilt-up jobs before.

On the day when the concrete was poured, Mr. Frueh and others of appellant's employees applied the process to the floors of a portion of the construction designated 'Unit A.' The formula was not applied to concrete poured for the flooring of 'Unit B.' An anti-bonding agent was applied between the layers of poured concrete on each unit. When the time came to tilt-up the slabs, those on Unit B lifted easily. However, the layer directly upon the floor slab of Unit A, to which the formula had been applied, adhered and would not tilt. All the slab was damaged in some degree, and a portion was completely destroyed. The trial court found that appellant had expressly and impliedly warranted against such an eventuality.

Finding of Express Warranty

The evidence is conclusive that Mr. Frueh represented to both the school district and the architects that the Ashford Process could be successfully employed with the tilt-up construction method and would not harm any of the surfaces. This representation was an affirmation of fact by the seller relating to the goods sold; the natural effect thereof was to induce reliance by the buyer; the goods were purchased because of such representations; the process thereby was warranted not to hinder tilt-up construction. Civ.Code, § 1732.

A seller of goods other than foodstuffs is bound by his unadvertised warranty only to parties with whom he is contractually obligated. Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695, 268 P.2d 1041. Here the plaintiffs who suffered monetarily from reliance upon the representations of appellant's agent were indeed the initial purchasers and in privity of contract with appellant. The fact that the representations constituting the warranty were not made immediately to the purchasers but to the agencies which directed them to buy and use the product is immaterial. There is no rule that the warranty must be made directly to the buyer where the seller intends that he rely upon the warranty. The law has always recognized that communication by indirection may be just as effective as when direct. For example, a fraudulent misrepresentation is no less actionable because made to a third person who is intended to and does relay the information to the person who relies. See Cohen v. Citizens National Trust and Savings Bank, 143 Cal.App.2d 480, 300 P.2d 14. If appellant had induced the school district and architects to persuade respondents to purchase the Ashford Process and thereby authorized the district and its architects as agents to warrant the fitness of the product, there would be no question of liability. The situation is not improved from appellant's standpoint because the warranties were communicated to parties with power to direct the purchase of the formula by respondents.

A similar factual situation was present in United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432. However, in that case it was the public agency rather than the purchasing contractor which claimed the benefit of the warranty. The court sustained recovery on the theory that the agency which drew the specifications and the contractor who complied therewith were identical in interest. The instant matter is a fortiori since the plaintiffs are the parties actually in privity of contract with the vendor.

Finding of Implied Warranty

'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller's skill or judgment * * * there is an implied warranty that the goods shall be reasonably fit for such purpose.' Civ.Code, § 1735, subd. 1. The essential requisites of this 'implied warranty of fitness' are that the seller be apprised of the intended use of the product and that the buyer rely upon the skill and know-how of the seller in his selection of the product. Schied v. Bodinson Manufacturing Co., 79 Cal.App.2d 134, 141, 179 P.2d 380; Drabkin v. Bigelow, 59 Cal.App.2d 68, 70, 138 P.2d 750; Starr Piano Co. v. Martin, 119 Cal.App. 642, 648-649, 7 P.2d 383; United States Credit Bureau, Inc., v. Powell, 121 Cal.App.2d Supp. 870, 873-874, 264 P.2d 229. The warranty is breached if the seller's product is not in fact suitable for the use intended by the purchaser. Tremeroli v. Austin Trailer Equipment Co., 102 Cal.App.2d 464, 475, 227 P.2d 923.

Here appellant was on notice that the formula was to be applied to floor slabs of concrete upon which successive slabs would be poured; that it was imperative that the slabs not adhere. Neither respondents nor the architects who drew the specifications were familiar with the use of appellant's formula, particularly as used in conjunction with tilt-up construction. The ingredients of the formula were a trade secret of appellant, and therefore the latter would be the only person involved likely to be possessed of the knowledge that the formula would interfere with the action of anti-bonding agents. The architects and respondents repeatedly informed appellant's husband that they were unfamiliar with the use of the product on tilt-up jobs and patently relied upon his judgment that the product was suitable. The elements of implied warranty were all satisfactorily proved.

Appellant introduced evidence that neither she nor her husband was aware that their product would have so dire an effect upon bond-breaking compounds used in tilt-up construction. But whether or not appellant was...