Roe Roofing, Inc. v. Lumber Products, Inc.

• Jurisdiction: Oregon
• Parties: , 39 UCC Rep.Serv. 854 ROE ROOFING, INC., an Oregon corporation, Respondent, v. LUMBER PRODUCTS, INC., an Oregon corporation, Appellant, Rosboro Lumber Company, a partnership, Intervenor. 16-82-01066; CA A28918.
• Citation: 70 Or.App. 93,688 P.2d 425
• Court: Oregon Court of Appeals
• Decision Date: 27 December 1984

Page 425

688 P.2d 425

70 Or.App. 93, 39 UCC Rep.Serv. 854

ROE ROOFING, INC., an Oregon corporation, Respondent, v. LUMBER PRODUCTS, INC., an Oregon corporation, Appellant Rosboro Lumber Company, a partnership, Intervenor.

16-82-01066; CA A28918.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1984.

Decided Sept. 26, 1984.

Review Denied Dec. 27, 1984.

Randall Bryson, Eugene, argued the cause for appellant. With him on the brief was Bryson & Bryson, Eugene.

Fred A. Divita, P.C., Eugene, argued the cause and filed the brief for respondent.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

In this action at law for breach of implied warranty, defendant appeals from a judgment in favor of plaintiff. Plaintiff alleged that plywood it received from defendant was not fit for the ordinary purposes for which such goods are used. ORS 72.3140(2)(c). As an affirmative defense, defendant alleged that plaintiff had failed to install the plywood properly. Defendant contends that the trial court erred (1) in instructing the jury that defendant had the burden of proving plaintiff's damage was caused by improper installation; (2) in failing to instruct the jury that plaintiff had the burden to prove that any damage was caused by defects within defendant's control; and (3) in failing to direct a verdict for defendant. We affirm.

Plaintiff purchased 244 plywood panels from defendant. The panels were manufactured by intervenor, Rosboro Lumber Company. Plaintiff used most of the panels to reroof two private residences. Soon thereafter, the panels buckled. Plaintiff was required to perform extensive repairs. The trial court instructed the jury:

"I further instruct you that if you find that the defendant breached its warranty of merchantability but nevertheless has proven with a preponderance of the evidence that plaintiff's damage was caused by improper installation of the plywood by the plaintiff, plaintiff may not recover damages."

Defendant argues that, although it raised the issue of improper installation as an affirmative defense, the issue could have been raised under a general denial and, therefore, it did not assume the burden of proof.

Generally, the burden of proof does not shift merely because a defendant raises as an affirmative defense matter that could equally be proved under a general denial. See Layton Manufacturing v. Dulien Steel, 277 Or. 343, 349 n. 1, 560 P.2d 1058 (1977). However, in a proper case, a party may be estopped from asserting the general rule under the theory that any error in the allocation of the burden of proof resulting from improper pleading is invited. Although Layton presents a clearer example of the basis for estoppel, the facts here are sufficiently similar to estop defendant from relying on the general rule.

In Layton, an action on a contract, the defendant pleaded as an affirmative defense that a damages clause in the contract was in fact a penalty provision. A pretrial hearing was held on the penalty issue. At that hearing, the defendant presented evidence first and was first to make a closing argument. The Supreme Court concluded that, "[a]s a practical matter, then, defendant assumed the burden of proof on this issue, and this assumption will not be disturbed on appeal." 277 Or. at 349, 560 P.2d 1058.

In Dean Vincent, Inc. v. Krimm, 285 Or. 439, 591 P.2d 740 (1979), the plaintiff, a real estate brokerage, sued a vendor to recover a commission. The plaintiff attempted to prove that the agreement's liquidated damages provision was valid, even though that was a matter normally raised by the defense. Citing Layton, the Supreme Court held that, because the plaintiff had tried the case on the basis that it had the burden of proof and the trial court decided it on that basis, the defendant could not rely on its mistake on appeal. See Sterling v. City of Albany, 276 Or. 403, 406, 555 P.2d 23 (1976); Crawford v. Standard Ins. Co., 49 Or.App. 731, 737, 621 P.2d 583 (1980), rev.den. 290 Or. 652 (1981).

At trial, defendant here attempted to show that the panels were installed improperly. Conflicting evidence was presented. Although defendant excepted to the trial court's instruction, it did not withdraw its affirmative defense of improper installation before the jury was instructed. Further, the trial court relied on the pleadings in instructing the jury on the burden of proof. Thus, any error in the giving of the instruction was clearly invited. Defendant is therefore estopped from asserting that alleged error as a ground for reversal.

Defendant next contends that the trial court erred in failing to give the following requested instruction:

"The plaintiff has the burden to establish with reasonable certainty that, of the possible causes of the buckling of the plywood, it was most probable that such buckling was caused by defects within the control of the defendant, and not by improper installation or other causes."

See Martin v. Burlington Northern, 47 Or.App. 381, 386, 614 P.2d 1203, rev. den. 290 Or. 149 (1980). The requested instruction correctly states a part of our holding in Davison v. Parker, 50 Or.App. 129, 133, 622 P.2d 1113, rev.den. 290 Or. 853 (1981). ¹ There, the plaintiff sued to foreclose a construction lien for concrete sewer piping it had supplied to the defendant, who counterclaimed for breach of warranty of merchantability. We stated:

"The question of causation is one of fact and defendants had the burden of establishing with reasonable certainty that, of the possible causes of the pipe failure, it was most probable that the cause was one within plaintiff's control and was not due to defendants' own error. Valley Inland Pac. Constructors v. Clackamas Water Dist., 43 Or.App. 527, 532-33, 603 P.2d 1381 (1979). Where the alleged cause of failure involves a latent defect, as in this case, a party may prove circumstantially that a defect existed by showing it used the product in the normal manner. Controltek, Inc. v. Kwikee Enterprises, Inc., 284 Or 123, 130-31, 585 P2d 670 (1978)."

Nevertheless, the requested instruction was properly denied. First, the instruction is an attempt to reallocate the burden of proof to plaintiff...