Redman Industries v. Binkey

• Decision Date: 14 March 1973
• Citation: 49 Ala.App. 595,274 So.2d 621
• Parties: , 12 UCC Rep.Serv. 436 REDMAN INDUSTRIES v. E. J. BINKEY, Individually, and trading and d/b/a Flamingo Trailer Sales and James Myrick. Civ. 24.
• Court: Alabama Court of Civil Appeals

Page 621

274 So.2d 621

49 Ala.App. 595, 12 UCC Rep.Serv. 436

REDMAN INDUSTRIES v.E. J. BINKEY, Individually, and trading and d/b/a Flamingo Trailer Sales and James Myrick.

Civ. 24.

Court of Civil Appeals of Alabama.

March 14, 1973.

Harold Albritton, Andalusia, for appellant.

Tipler, Fuller & Barnes, Andalusia, for appelleeJames Myrick.

HOLMES, Judge.

This suit was originally filed in the Circuit Court of Convington County, Alabama, by one of the named appellees, James Myrick, against the other appellee, E. J. Binkey, individually, and trading and doing business as Flamingo Trailer Sales, and the appellant, Redman Industries, Inc., as joint defendants.

Plaintiff-Myrick later struck Redman Industries, Inc., as a defendant and proceeded against E. J. Binkey.The defendant-Binkey brought Redman Industries, Inc., back into the case by filing a third party complaint pursuant to Tit. 7, § 259(2),Code of Alabama 1940, against Redman Industries, Inc.

Plaintiff's original complaint, claiming $20,000 damages, consisted of two counts, one charging a breach of warranty that said mobile home was properly constructed and fit to live in and occupy as a home, and the second charging a breach of warranty that said mobile home was fit for the ordinary purposes for which said mobile home is used, to wit, to live in and occupy at a home.

The third party complaint alleged the purchase of said mobile home as a new unit from third party defendant, Redman Industries, Inc.; that Redman warranted said mobile home to be free from defects in material and workmanship under normal use to Binkey; and that if, in fact, said mobile home was not free from defects in material and workmanship as alleged in plaintiff's complaint, then any recovery which might be awarded against Binkey would be as a direct result of Redman furnishing a defective mobile home and would make Redman liable in this action and he claimed such damages as might be awarded plaintiff.

Defendant-Binkey and third party defendant-Redman, after their demurrers were overruled, plead in short by consent.

The jury returned verdicts in favor of the plaintiff-Myrick against the defendant-Binkey in the amount of $5,000 and against the third party defendant-Redman, in favor of defendant-Binkey in the same amount of $5,000, and judgments were entered thereon by the court.

Motions for a new trial by Binkey and by Redman were overruled and denied by the learned trial judge conditioned upon the filing by the plaintiff-Myrick and third partyplaintiff-Binkey of remittiturs in the amount of $1,250, which remittiturs were filed.

From briefs this court discerns that defendant-Binkey paid judgment and does not join in this appeal.Third party defendant-Redfman brings appeal, assigning some seven grounds of error.

Error is assigned to the court's overruling appellant's demurrer; four assignments of error relate to the trial court's refusal to grant appellant the affirmative charge as to the third party complaint; another assignment of error concerns the trial court's refusal to give a written requested charge relating to the requirement of notice; and, further, an assignment that the trial court erred in denying appellant's motion for a new trial, asserting in grounds to such motion that the verdict was contrary to the evidence and law in the case and against the great weight and preponderance of the evidence.

At the outset it should be established that the verdict and judgment rendered thereon against defendant-Binkey and in favor of original plaintiff-Myrick is not before this court on appeal and cannot be disturbed by this court.

The record reveals the following: Plaintiff-Myrick purchased a mobile home from defendant-Binkey, a retail mobile home dealer, in December of 1969.The mobile home had been manufactured sometime earlier by appellant-Redman and sold to the retailer.Binkey did not alter the mobile home in any way after receiving it from the manufacturer and prior to selling to the plaintiff-Myrick.

Binkey, the retailer, was not employed by the manufacturer, but was a retail dealer who had handled appellant manufacturer's products for a period of time and was familiar with and had read a certain warranty given by appellant manufacturer on its mobile homes.It was the customary procedure for the retailer, upon making a sale, to send a warranty card furnished by the manufacturer to the manufacturer for the buyer.It was also customary for the retail dealer to mention the manufacturer's warranty as a selling tool.

The written warranty provided:

'This home when purchased new is warranted by New Moon Homes Division of Redman Industries, Inc., (the 'Manufacturer') to the original retail purchaser to be free from defects in materials and workmanship under normal use and service for a period of twelve (12) months from the date of delivery of twenty-four (24) months from the date of manufacture, whichever is less.This warranty is limited solely to work performed and materials supplied by the Manufacturer, and does not include any work or materials by the dealer, the developer, or any other person.Manufacturer agrees within the warranty period to replace or repair without cost to purchaser any part or parts, returned to the nearest factory with transportation charges prepaid, which Manufacturer's examination shall disclose to have been defective.When it is impractical to send the defective part to the nearest factory, then Manufacturer shall have no liability for the labor cost involved in repairing or replacing any part of the home, and shall be liable solely for supplying the material necessary to replace or repair the defective part.Misuse, neglect, accident, failure to follow the instructions set forth in the Manufacturer's Instruction Sheet or any Option Instruction Sheet, or unauthorized repairs or alterations shall void this warranty.Furniture, not an integral part of the home, electrical appliances, furnace, water heater, air conditioner, and plumbing fixtures are not covered by his warranty as they are warranted by the individual manufacturers of each of them.'Manufacturer will not be liable for commitments or agreements made by any of its employees, agents, or dealers not in accordance with the above warranty.This warranty is expressly IN LIEU OF any other express or implied warranty, including any implied WARRANTY OF MERCHANTABILITY or FITNESS, and of any other obligation on the part of Manufacturer.Manufacturer shall not be liable for consequential damages.'This warranty is not valid unless the accompanying Customer Warranty Card has been properly filled out and mailed to the New Moon Homes Division of Redman Industries, Inc. at the time of purchase.'

The retailer-Binkey, in this instance, stated to purchaser-Myrick that he would stand behind the warranty because Redman stands behind their dealers.

The plaintiff lived in the mobile home without any trouble until September of 1970.It is not disputed that at this time the plaintiff started having trouble with the mobile home.The carpet was wornout and was found in rolls and heaps pushed against the walls; a portion of the tar paper board under the trailer fell down, allowing insulation material to fall to the ground; the duct work for the central air conditioning unit located under the floor was gapped and water collected in the ducts; a compartment door was not flush fitting; and the drain for the air conditioner became plugged up several times.

The plaintiff reported the trouble to the retailer, but not to the manufacturer.The retailer did not...