Odom v. Ford Motor Co.

• Decision Date: 11 December 1956
• Docket Number: No. 17233,17233
• Citation: 230 S.C. 320,95 S.E.2d 601
• Parties: Harley ODOM, Respondent, v. FORD MOTOR COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 601

95 S.E.2d 601

230 S.C. 320

Harley ODOM, Respondent, v. FORD MOTOR COMPANY, Appellant.

No. 17233.

Supreme Court of South Carolina.

Dec. 11, 1956.

Melvin Hyman, Darlington, for appellant.

John P. Gardner, Robert L. Kilgo, Darlington, for respondent.

OXNER, Justice.

This action was brought by Harley Odom, a Darington County farmer, against the Ford Motor Company to recover damages for alleged breach of warranty of soundness and fitness of a tractor for agricultural purposes. The tractor was manufactured by Ford and sold to its Charlotte distributor, Carolina Ford Tractor, Inc., which in turn sold it to the Darlington dealer, Sansbury Tractor Co., Inc., from which it was purchased by Odom on August 1, 1953.

The complaint is based on an oral express warranty as to quality and adaptability claimed to have been made by Sansbury Tractor, Inc., as the agent of Ford, and also on an implied warranty by the manufacturer as to the fitness and adaptability of the tractor for agricultural purposes. It was alleged in the complaint that the tractor was 'not capable of doing general farm work because of a defective lift.' It was further alleged in Paragraph 5:

'That because of the defective lift on said tractor, and the resulting inefficiency for general farm use, plaintiff's valuable crops were materially damaged as he was unable to perform the tasks designed for the said tractor to do; that plaintiff was put to great additional expense in his farming operations by reason of the aforesaid defects which directly caused and occasioned loss and damage to plaintiff in the sum of Three Thousand ($3,000.00) Dollars.'

The first defense of Ford was in effect a general denial. As a second defense, it set up an express written warranty wherein it limited its obligation to the replacement, for a period of ninety days from date of delivery, of any parts found defective. It was further stipulated: 'This warranty is in lieu of any other warranty express or implied and any other obligation or liability on the part of Ford Motor Company.' As a third defense, it was alleged that if said tractor had a defective lift, such could have been discovered by reasonable inspection or examination and that by accepting said tractor and keeping same for a period in excess of ninety days without making any complaint, the purchaser had waived any right to assert that it was defective.

At the commencement of the trial defendant moved to require the plaintiff to elect whether he would proceed upon an express warranty or in implied warranty. The Judge reserved his ruling and proceeded to take the testimony. That of plaintiff was to the effect that shortly after purchasing the tractor it developed that the lift, described in the testimony as a hydraulic system which 'raises, lowers and controls the implement', would not function properly; that such defect was called to the attention of the Darlington dealer and Charlotte distributor but was not remedied; that because of the inability of the plaintiff to use the tractor on his farm he was delayed in planting his 1954 cotton crop, causing a considerable loss in production and necessitating purchasing mules to do the work which should have been done by the tractor. According to the testimony of the defendant, no complaint was made to it as to any parts being defective for almost a year after the tractor was purchased and te alleged defective lift was corrected and new parts installed in March and June, 1955, without any expense to the plaintiff.

At the conclusion of the testimony it was conceded that there was no testimony showing that Sansbury Tractor Co., Inc., was the agent of Ford or that said dealer had any authority to bind Ford by any representation or warranty. Respondent then elected to proceed on an implied warranty by the manufacturer of the fitness and adaptability of the tractor for the purposes for which it was sold. During the course of the trial timely motions were made by the defendant for a nonsuit and a directed verdict. These motions were refused and the case submitted to the jury solely on the theory of an implied warranty. A verdict was returned for plaintiff in the sum of $3,000. Defendant made a motion for judgment non obstante veredicto or in the alternative for a new trial, which was refused. This appeal followed.

There are numerous exceptions but we need only consider the contention that this action may not be maintained against Ford on an implied warranty because of lack of privity of contract. We may disregard the written warranty set up in Ford's answer limiting its liability to the replacement during a certain stipulated period of any defective parts, since under the instructions of the Court the jury necessarily found that this warranty was not binding on respondent because it was never brought to his attention. Stevenson v. B. B. Kirkland Seed Co., 176 S.C. 345, 180 S.E. 197; Reliance Varnish Co. v. Mullins Lumber Co., 213 S.C. 84, 48 S.E.2d 653; Joseph v. Sears, Roebuck & Co., 224 S.C. 105, 77 S.E.2d 583, 40 A.L.R.2d 742.

At the outset we are met with respondent's argument that the question of lack of privity between the parties cannot be considered because it was not included in the grounds of the motions for nonsuit and directed verdict. While privity of contract was not mentioned eo nomine, appellant's position throughout the trial was that the only liability assumed by it was under the written warranty set up in the answer and if there was any other warranty made at the time of the purchase of the tractor, it was the sole obligation of Sansbury Tractor Company which was not its agent and was without authority to bind it in any manner whatsoever. After careful consideration of the grounds of the motion for nonsuit and directed verdict, it is our conclusion that they are broad enough to raise the question of whether an action could be maintained against appellant on an implie warranty. It was not necessary for appellant to 'brief' the point. It should be further stated that the element of privity of contract was specifically mentioned and argued on appellant's motion for judgment non obstante verdicto and it appears that respondent's counsel participated in the argument of this question without reservation or objection. Evidently they then thought that it was properly before the Court. In the order denying the motion, the Court held that lack of privity of contract between appellant and respondent would not bar the maintenance of an action on an implied warranty.

The general rule is that privity of contract is required in an action for breach of an implied warranty and that there is no such privity between a manufacturer and one who has purchased the manufactured article from a dealer or is otherwise a remote vendee. Collum v. Pope & Talbot, Inc., 135 C.A.2d 653, 288 P.2d 75; Lombardi v. California Packing Sales Co., R.I., 112 A.2d 701; Silverman v. Samuel Mallinger Co., 375 Pa. 422, 100 A.2d 715; Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d 8; Cohan v. Associated Fur Farms, Inc., 261 Wis. 584, 53 N.W.2d 788; Cotton v. John Deere Plow Co., 246 Ala. 36, 18 So.2d 727; Dennis v. Willys-Overland Motors, Inc., D.C., 111 F.Supp. 875; Torpey v. Red Owl Stores, 8 Cir., 228 F.2d 117, 121. In the last mentioned case the Court said: 'While the warranty is implied by law it nevertheless becomes a part of the contract.'

The foregoing rule is followed in this jurisdiction. In Mauldin v. Milford, 127 S.C. 508, 121 S.E. 547,...