Riesen v. Leeder

• Decision Date: 06 July 1961
• Citation: 14 Cal.Rptr. 469,193 Cal.App.2d 580
• Court: California Court of Appeals Court of Appeals
• Parties: D. E. RIESEN and John F. Hubbard, dba under the firm name and style of Rlesen & Hubbard, a co-partnership, Plaintiffs, v. Malcolm LEEDER, Individually, and Malcolm Leeder dba firm name and style of Leeder Specialty Company, Defendant, Cross-Complainant and Respondent, Royal Manufacturing Co., a corporation, Cross-Defendant and Appellant. Civ. 19269.

Page 469

14 Cal.Rptr. 469

193 Cal.App.2d 580

D. E. RIESEN and John F. Hubbard, dba under the firm name and style of Rlesen & Hubbard, a co-partnership, Plaintiffs, v. Malcolm LEEDER, Individually, and Malcolm Leeder dba firm name and style of Leeder Specialty Company, Defendant, Cross-Complainant and Respondent, Royal Manufacturing Co., a corporation, Cross-Defendant and Appellant.

Civ. 19269.

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

July 6, 1961.

Anello & Vogel, by Bernard J. Vogel, Jr., San Jose, for appellant.

Popelka, Graham, Hanifin & Bonney, San Jose, for respondent.

DRAPER, Justice.

Cross-defendant manufacturer appeals from judgment in favor of cross-complainant retailer, in an action for breach of implied warranty. Manufacturer sold coffee vending machines to retailer in January, 1954. The latter resold four of them to plaintiff June 22, 1955, and made delivery in August, 1955. Plaintiff immediately complained that the cups of coffee dispensed by the machines were too weak or too bitter, and that the machines broke down. The complaints were renewed frequently. In late September or 'very early October', 1955, plaintiff offered to return the machines to Leeder, the retailer, and demanded return of the price which had been paid. Plaintiff filed his complaint in this action July 9, 1957. Leeder cross-complained against the manufacturer October 15, 1957. Judgment was ordered in favor of plaintiff against Leeder on the complaint, and in favor of Leeder against the manufacturer, for the same amount, on the cross-complaint. The only appeal is by the manufacturer from the judgment on the cross-complaint. The sole point raised is the statute of limitations.

In an action for breach of implied warranty, the two-year period (Code Civ.Proc. § 339(1)) governs (Wyatt v. Cadillac Motor Car Division, 145 Cal.App.2d 423, 426, 302 P.2d 665).

Respondent Leeder assumes that his cross-action is one for indemnity, and confines his argument to the question when the statute begins to run against such an action. His assumption is erroneous. 'Indemnity is a contract by which one engages ot save another from a legal consequence * * *' (Civ.Code § 2772). Nowhere does Leeder plead, prove, or even suggest an agreement by manufacturer to indemnify him. Nor does he plead or prove any tort liability, much less that unusual situation which can give one tortfeasor a claim over, perhaps akin to indemnity, against the other (City & County of San Francisco v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802). We are satisfied that respondent retailer's cause of action both on his pleadings and his proof, is one for breach of implied warranty (Civ.Code § 1735), and thus subject to the two-year limitation.

The remaining question is when the statute commenced to run. The general rule is that this date is the time of the sale from which the warranty is implied (Mary Pickford Co. v. Bayly Bros., Inc., 12 Cal.2d 501, 521, 86 P.2d 102; 1 Williston on Sales, § 212a, p. 550). This rule has been criticized, since under it the statute may run before the buyer knows of the breach of warranty (1 Williston, supra; 1 Witkin, Calif.Proc., 630-631; 63 Harv.L.R. 1202; 27 Mich.L.R. 826-827). The rule is particularly severe when applied to a middleman or retailer, who purchases only for resale and thus is not himself likely to discover defects which appear only upon use (see Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142; W. S. Rockwell Co. v. Lindquist Hardware Co., 143 Conn. 684, 125 A.2d 173; Liberty Mutual Ins. Co. v. Sheila-Lynn, Inc., 185 Misc. 689, 57 N.Y.S.2d 707). The amelioration generally suggested is that the statute should begin to run when the purchaser discovers, or reasonably should discover, the defect (P. H. Sheehy Company v. Eastern I. & Mfg....