Salt Lake Hardware Co. v. Connell

• Decision Date: 19 June 1933
• Docket Number: 1835
• Citation: 47 Wyo. 145,34 P.2d 23
• Parties: SALT LAKE HARDWARE COMPANY v. M. B. CONNELL et al
• Court: Wyoming Supreme Court

34 P.2d 23

47 Wyo. 145

SALT LAKE HARDWARE COMPANY v. M. B. CONNELL et al

No. 1835

Supreme Court of Wyoming

June 19, 1933

APPEAL from the District Court, Uinta County, JOHN R. ARNOLD, Judge.

Action by Salt Lake Hardware Company, a corporation, against M. B Connell and others, to recover a balance of agreed purchase price and installation of a petroleum still for refining crude oil, to which defendants alleged a breach of warranty in the purchase contract. From a judgment for defendants plaintiff appeals.

Affirmed.

The cause was submitted for the plaintiff and appellant on the brief of Louis Kabell, Jr. of Evanston.

The answer admitted the indebtedness and failed in the affirmative defense of breach of implied warranty to allege a tender and offer of return or a return of the merchandise purchased. The court abused its discretion by permitting an amendment which changed the nature of the defense. 49 C. J 122; Kaiser v. Commissioners (Ohio) 97 N.E. 52; Bonesteel v. White (Kan.) 275 P. 163; Scovanner v. Toelke (Ohio) 163 N.E. 493; Wilconsin v. Stone (Okla.) 200 P. 196. Where a defendant makes a direct admission in his plea or answer, he is bound thereby. 49 C. J. 283; Haines v. Marshall (Colo.) 185 P. 651; McBroom v. Wilgus (Kan.) 193 P. 1068. The court erred in denying plaintiff's motion for a judgment on the pleadings. Nation v. Clay (Kan.) 266 P. 45; Stanley v. Garvin (Kan.) 203 P. 301; Myer v. Morse (Nebr.) 143 N.W. 206; Johnson v. Harvey (Kan.) 112 P. 108; 55 C. J. 960, 966; 24 R. C. L. 370. No warranty is implied that a machine designed for a general use is suitable for a particular purpose. 55 C. J. 717, 721, 732, 774. There is no implied warranty recognized by the uniform sales act, except in a few described situations. 55 C. J. 772. Our statute Section 98-505, R. S. 1931, requires the buyer to make known the particular use of the goods purchased, and if buyer examines the goods there is no implied warranty as to defects which he ought to have recognized by examination. Where there is a sharp conflict in the evidence the rulings as to admission and exclusion of evidence should be accurate. 38 Cyc. 1339. Where a party offers relevant testimony in rebuttal, it is error to reject it. 38 Cyc. 1343. The relevancy of evidence offered is determined by the pleadings. 38 Cyc. 1326. When the relevancy of a transaction depends upon the existence of an agency or notice, the safer course is not to receive evidence of it until such agency has been established. Gage v. Averill, 57 Mo.App. 111. Massae Brothers admitted by answering without objection to the name in which they had been sued that they were defendants in the cause. Section 81-308 R. S. 1931; Cobb v. Martin (Okla.) 123 P. 422. Defendants' expert witness tacitly admitted that he had had no practical experience for 32 years. 47 C. J. 709. This court will not reverse a decision based upon conflicting evidence, if there be evidence tending to sustain the judgment. Ketchum v. Davis, 3 Wyo. 164; Carter Oil Company v. Company, 37 Wyo. 448; 4 C. J. 886.

The cause was submitted for defendants and respondents on the brief of Ivan S. Jones, of Kemmerer.

The authorities cited by appellant as to the alleged breach of discretion in permitting an amendment to defendants' answer, are not in point, and under his contention, amendments permitted in the "furtherance of justice" would render the statute 89-1063, R. S. 1931 meaningless. The decision of this court in Wyoming Company v. Lumber Company, 25 Wyoming 158 disposes of the case of Bonsteel v. White. An examination of other authorities cited will disclose that they are readily distinguishable from the case at bar on the facts. Our statute authorizes liberality in making amendments. 89-1063, R. S. 1931; King v. Giblin (Wyo.) 256 P. 1035. And this even in a departure from the original pleading. North Laramie Company v. Hoffman, 195 P. 988. The rule has become universal in this country. Boehmke v. Northern Company (O. S.) 102 N.E. 700; Burns v. Scoofy (Cal.) 33 P. 86; Leach v. Nelson (N. D.) 189 N.W. 251; Bissinger v. Weiss (Wyo.) 195 P. 527; Hale v. Gardner (Cal.) 200 P. 598; Cushing v. Hutchins (Okla.) 219 P. 408; Loring v. Randall (Ida.) 148 P. 468; Mode v. Myers (Ida.) 164 P. 91; 1 Banc. Pl. 743; Tanner v. Harper (Colo.) 75 P. 404. No tender or return of the goods is necessary. The buyer may keep the goods and set up a breach of warranty by way of recoupment in diminution or extinction of the price. 98-1604, R. S. 1931. An appellate court will consider only such questions as were raised below. 8 Banc. Pr. 8477. Wyo. Loan v. Johnston (Wyo.) 240 P. 449; Caddo Bank v. Moore (Okla.) 120 P. 1003. The theory upon which a case has been tried must be adhered to on appeal. Jones v. Kepford, 17 Wyo. 468; 8 Banc. Pr. 8481; Carroll v. Anderson, 30 Wyo. 271. Respondents were entitled to some form of relief. Respondents contend that the case is governed by Section 98-505, R. S. 1931. Appellant does not contend that the still in question was of any value for any purpose. The testimony clearly establishes the fact that respondents relied upon the judgment and skill of plaintiff's agents and representatives. There was no evidence of any partnership between J. A. and C. C. Massae, or either of them. The burden was upon plaintiff. 20 R. C. L. 849. A sale of an article for a special purpose carries a warranty that it is fit for that purpose. Barts v. Dowie, 51 A. L. R. 494; Machine Company v. Charlevoix, 64 A. L. R. 947. It is the general rule that an implied warranty is not excluded by an express warranty unless it is inconsistent therewith. We believe there are no errors in the record, at any rate, none prejudicial to rights of appellant. Section 89-2002, R. S. 1931. In order that an exception may be considered, it must be material to a substantial right. Pardee v. Kuster, 15 Wyo. 368; Hunt v. Glassell (Cal.) 191 P. 373.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The Salt Lake Hardware Company, a corporation, as plaintiff, brought an action in the District Court of Uinta County against Mrs. M. B. Connell and Massae Brothers, as defendants, and, being unsuccessful in the litigation there, has brought the judgment, rendered in the case, here for review by direct appeal.

Summarized, the facts appear to be these: The defendant, Mrs. M. B. Connell, for some time during the year 1929, had been engaged in the business of producing crude oil from wells located at Spring Valley in Uinta County, and was desirous of obtaining an oil still for use in refining the product. With this end in view, she and her eldest son, J. A. Massae, prior to April 24 in the year aforesaid, went to Salt Lake City, Utah, and made arrangements with the Western Heating and Sheet Metal Works, hereinafter generally referred to as the "Metal Works," through Wm. W. Edwards, its President and managing officer, for the construction of such a device. Under date of April 24, 1929, he sent Mrs. Connell, whose given name is Drusilla, at Spring Valley, Wyoming, the following letter:

"In accordance with our conversation, we will build and furnish you with one upright oil still of 50 barrels capacity, all complete with ladder, platform, cleanouts, outlets, bottom part for oil burners, (but no burners), etc., for the sum of $ 1200.00, f. o. b. Salt Lake City. Terms of payment one-third cash, balance within 90 days. All labor and material guaranteed to be strictly first-class in every respect. In accordance with our agreement, work has already been started on this job and same will be hurried all possible to completion.

"This letter is being sent you in duplicate and we ask that you please sign and return one copy to us which will constitute a contract between us.

"Please pardon delay in getting this letter to you.

Yours very truly,

Western Heating & Sheet Metal Works,

By Wm. Edwards, President & Manager."

The duplicate copy referred to in this communication was returned to him endorsed under the typewritten word "Accepted" with Mrs. Connell's signature, "Drusilla Connell." The still was, in due course, completed and, with other material purchased by or for Mrs. Connell for use in connection therewith, was delivered, apparently during the latter part of the month of May or the first part of the month of June, 1929, and immediately set up by J. A. Massae for operation at Spring Valley.

As shown by the letter above quoted, the contract price for the still was $ 1200; the additional material purchased increased the bill to the total amount of $ 1752.36. Mrs. Connell made cash payments on the account totaling $ 475, and she was also credited with an allowance of $ 214.30 made by Mr. Edwards because of old asphalt oil left in the still when delivered by the vendor which damaged the new oil placed in it when it was undertaken to be put in operation by the purchaser. After applying the cash payments and this credit item, there remained unpaid on the account the sum of $ 1063.06, the amount involved in this litigation.

It appears that J. A. Massae, who testified to having had considerable experience in construction work of various kinds, including steam-fitting, took about a month to erect the still after it had been delivered, and then tried to operate it. He stated, as a witness on the stand for the defendants, that he was never able to produce any gasoline with the still despite repeated trials extending over a period of several weeks. It seems that Mr. Edwards was promptly advised of the inability of the still to function and, according to Mr. Massae's testimony, Edwards said, "I will make it work. I will put a man on it to put a larger pipe on it." This was undertaken to be done by sending one of the vendor's workmen to Spring Valley with...