Roscher v. Band Box Cleaners

• Decision Date: 02 July 1951
• Citation: 90 Ohio App. 71,103 N.E.2d 404
• Parties: , 46 O.O. 399 ROSCHER v. BAND BOX CLEANERS, Inc. et al.
• Court: Ohio Court of Appeals

Page 71

90 Ohio App. 71

103 N.E.2d 404, 46 O.O. 399

ROSCHER v. BAND BOX CLEANERS, Inc. et al.

Court of Appeals of Ohio, Hamilton County.

July 2, 1951.

Syllabus by the Court.

A statement purporting to be the opinion or belief of an agent of the vendor of a patented article with reference to the permissible use of such article in conjunction with telephones is not an express warranty, and where such article is sold under its patent or trade name there is no implied warranty of its fitness for any particular purpose.

Stewart S. Cooper, Cincinnati, for appellant.

Hoover, Beall, Whitman & Eichel, Cincinnati, for appellees.

PER CURIAM.

In this appeal from a judgment of the Municipal Court of Cincinnati, the plaintiff-appellant seeks to obtain the reversal of the judgment in favor of the defendants in two cases which by order of the court, were consolidated and tried together.

The actions involved the sale of a patented article to the two defendants, who, it is alleged, paid for a part of the quantity furnished and refused to pay for the balance. The statement of defense contained, first, a general denial and, second, the following statement:

'Further answering defendant says that it was induced to purchase the merchandise set forth in the bill of particulars of the plaintiff herein by the false representations of the agent of the plaintiff herein, and further that said representations were made with the knowledge of their falsity and with intent to deceive this defendant and that said defendant had a right to rely on such representations which consisted of statements made by the agent of the plaintiff herein. That the devices sold by plaintiff to defendant could be utilized without violating the rules and regulations of the Cincinnati & Suburban Bell Telephone Company.'

The reply was in effect a general denial.

It is claimed by the defendants that the allegations in the statement of defense justified a claim that there was a breach of express warranty. Section 8392, General Code, is claimed to be applicable. In this section it is stated: '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 purchases 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.' (Emphasis added.)

This section must be read in connection with Section 8395, General Code, in which it is stated: 'In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

An examination of the evidence discloses that previous to the consummation of the sale to the defendants there was a conversation between a salesman for plaintiff and officers of the defendants which were closely associated in the operation of the same type of business enterprise.

The president of Conlee Dry Cleaners, Inc., stated:

'Q. You stated that Mr. Beecher was asked by you if he thought the use of the ad caps would be permissible with the telephone company, and his answer was that, in his opinion, you would have no trouble with the telephone company, is that correct? A. Something to that effect. I didn't take it down. I don't know exactly what words he used.'

The president of the Band Box Cleaners stated: 'Q. Tell the court what conversations took place between you and Mr. Beecher at that time. A. He came in and showed me this medium of advertising; and it happened that Mr. Conlee had shown it to me while we were in Chicago some weeks previous to that. So I mentioned that fact to Mr. Beecher there, and he told me just what--the number that he required us to buy in order to get the exclusive arrangement for it in our trading area that we served; and he told me about Mr. Conlee had already ordered them. So I, at that time, did mention to Mr. Beecher about a difficulty with the telephone company. He said, well, he didn't think there would be any trouble with it and he had gone into that with Mr. Conlee; and he showed me an order from Conlee for these ad caps. So I just ordered them, too, in order * * *.'

From the evidence it further appears that the patented article, the subject of the controversy between the parties, consisted of a small plastic circular cap which could be placed over a circular projection usually appearing in the center of the dialing mechanism found on the so-called 'French' telephone instruments. Printed upon such plastic attachments were appropriate telephone numbers of (1) the fire department, (2) the police department, and (3) the ambulance department--each applicable to the area in which each defendant operated its business.

Also on each plastic attachment was the telephone number of the appropriate defendant in such areas.

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