Rittenhouse-Winterson Auto Co. v. Kissner

• Decision Date: 22 June 1916
• Docket Number: 24.
• Citation: 98 A. 361,129 Md. 102
• Parties: RITTENHOUSE-WINTERSON AUTO CO. v. KISSNER.
• Court: Maryland Court of Appeals

98 A. 361

129 Md. 102

RITTENHOUSE-WINTERSON AUTO CO. v. KISSNER.

No. 24.

Court of Appeals of Maryland

June 22, 1916

Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.

"To be officially reported."

Action by John A. Kissner against the Rittenhouse-Winterson Auto Company. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

Argued before BOYD, C.J., and BRISCOE, BURKE, URNER, STOCKBRIDGE and CONSTABLE, JJ.

J LeRoy Hopkins and Osborne I. Yellott, both of Baltimore, for appellants.

Wm Edgar Byrd and Frank M. Merriken, both of Baltimore (Charles Lee Merriken, of Baltimore, on the brief), for appellee.

URNER J.

The appeal in this case is from a judgment for $2,550 recovered by the appellee against the appellants in a suit for an alleged breach of warranty of a Seitz motor truck sold by the latter to the former in May, 1913. The regular market price of the truck was $3,600, but, as the one in question had been used for demonstration purposes, a reduction of $350 was made for that reason, and the price paid by the appellee was $3,250. It is averred in the declaration that the appellee bought the truck upon the warranty that it--

"was a first-class car, was as good as new and was in sound and first-class condition; and that, if it was not abused but handled with care, it would last the plaintiff at least four years."

The breaches charged were that the truck--

"was not a first-class car, was not as good as new, and was not in sound and first-class condition, but was unsound and in bad condition, and would not and could not be run or operated as an auto truck in sound and first-class condition could and would be run, and that said truck did not last the plaintiff at least four years from date of its purchase, although not abused, but handled with care."

The evidence offered in the case was directed mainly to the question whether the truck was inherently defective in its design and construction, and whether the difficulties encountered in its use were due to that cause or to negligence in its operation. From the record it appears that the rulings we are to review were made in the disposition of a demurrer to the declaration, numerous objections to testimony, and various proposals for instructions to the jury.

The declaration contained the common counts and also a special count based upon the alleged breach of warranty. It is contended that the special count is bad for duplicity because it combines two distinct causes of action. The theory of this contention is that the assurance as to the serviceability of the truck for the period of four years was not a warranty but, at most, an executory, contractual undertaking, which could not properly be combined in one count with the warranties as to the truck's quality and condition. The case of White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617, is cited to this proposition. In that case, however, the averment held objectionable, when made in combination with the breach of warranty declared on in the same count, was that the defendants failed to perform their agreement to keep the automobile, sold by them to the plaintiff, in satisfactory running order, without expense to him for one year from the date of the purchase. This assumption of an affirmative contractual duty was essentially different from the representation here relied upon as to the time during which the motor truck was capable of rendering efficient service. The assurance to that effect was not an executory promise, but had reference to an existing quality or capacity, and was hence closely akin to the other representations with which it was joined. In our opinion the demurrer was properly overruled.

A fundamental theory of the defense was that the statements attributed to the vendors by the declaration were not shown to have been made as warranties or otherwise than as a mere expression of belief in the high quality and utility of the motor truck offered for sale. It is insisted that, while the question as to whether the representations were intended and understood as warranties, or simply as selling arguments, should be determined from the circumstances of the case, and should ordinarily be left to the jury, as held in Osgood v. Lewis, 2 Har. & G. 495, 18 Am. Dec. 317, Horner v. Parkhurst, 71 Md. 116, 17 A. 1027, and other cases, yet the issue should have been withdrawn from the jury in this instance because there was no legally sufficient evidence to show that the affirmations of the vendors in reference to the truck were made in the contractual sense of warranting its quality and durability.

The Uniform Sales Act (Code, art. 83, § 33) provides as follows:

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchase the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty."

The rule thus declared by statute has long been recognized and applied by this court as a principle of the common law. Osgood v. Lewis, White Automobile Co. v. Dorsey, supra; Greer v. Whalen, 125 Md. 273, 93 A. 521. It is proven in this case that the representations alleged in the declaration did not purport to be statements of the sellers' opinion only, but were affirmations of fact relating to the truck, which were designed, and naturally tended, to induce the plaintiff to purchase, and upon which he definitely relied in the transaction. The statement that the truck would last four years, with careful use, was not a mere prediction as to the length of its service, but was a representation as to its capability of being operated for that period. There was no denial or explanation by the defendants of the statements imputed to them in this connection, and there is nothing to alter their natural import or qualify their ordinary legal effect as warranties of condition and quality.

The offer of testimony as to the oral representations referred to was opposed on the ground that the contract for the purchase of the truck was in writing and could not be varied by parol evidence. When the sale had been agreed upon, the price and description of the truck were entered on an order blank of the Seitz Automobile & Transmission Company, which the plaintiff signed. The negotiations for the sale had been conducted by John P. Seitz, a member of the company just named, in conjunction with one of the defendants, who were its Baltimore sales agents. A payment of $350 on account was to be made at the time of the purchase, and, as the plaintiff was about to draw his check for that amount, he was asked to make it payable to the defendants and complied with the request. Eight days later a further payment of $1,000 was made by a check likewise drawn to the defendants' order, the plaintiff being informed by Mr. Seitz, in the presence of one of the defendants, that the latter were the owners and vendors of the truck. The subsequent payments were made in the same manner. There was a printed provision in the order blank to the effect that the order was given subject to approval by the Seitz Company and, when so approved, should constitute a valid contract. No such approval was indorsed on the order, and the proof tends to show that the company named in it as vendor had in fact no proprietary interest in the sale of the truck or in its proceeds.

It thus appears that the form of...