Schwartz v. Macrose Lumber & Trim Co.

Decision Date03 June 1966
Citation270 N.Y.S.2d 875,50 Misc.2d 547
CourtNew York Supreme Court
PartiesPaul SCHWARTZ, Plaintiff, v. MACROSE LUMBER & TRIM CO., Inc., Macrose Industries, Inc., Defendants. WILMOD COMPANY, Inc., Defendant and Third-Party Plaintiff, v. The NISSHO AMERICAN CORP., Third-Party Defendant.
MEMORANDUM

J. IRWIN SHAPIRO, Justice.

Plaintiff purchased a box of nails from a lumber and hardware supply company, defendants Macrose Lumber & Trim Co., Inc., or Macrose Industries, Inc. (Macrose) which by stipulation are to be treated as one entity. He was injured as a result of the alleged shattering of the very first nail used by him and he brings this action to recover damages for whose injuries. The nails were manufactured by Amagasaki Nail Works, Ltd., Amagasaki, Hyogo, Japan (not a party to this action) and sold by it to defendant Nissho American Corp. (Nissho American) which in turn resold them to a supplier, Wilmod Company, Inc. (Wilmod) which thereafter resold them to another distributor who resold them to Macrose. Plaintiff joined Wilmod as a defendant along with Macrose, alleging that Wilmod manufactured the nails.

The nails were in fact manufactured in Japan by Amagasaki according to Wilmod's specifications and were shipped by in boxes designed by Wilmod directly to Wilmod, which placed certain labels on the individual boxes of nails and resold them to other distributors. Plaintiff proceeded against Macrose and Wilmod on the theories of breach of warranty, express and implied, and negligence.

Macrose interposed a cross claim against Wilmod in which Macrose sought recovery from Wilmod for any judgment against it.

Wilmod then impleaded Nissho America, as a third-party defendant, on the theory that Nissho American sold and delivered the nails to Wilmod and that If Wilmod were negligent in connection with the nails, its negligence was passive, whereas Nissho American's negligence was affirmative and, therefore, it would be entitled to a recovery over against Nissho American. As a second cause of action in the impleader complaint, Wilmod state that Nissho American warranted the nails as suitable for the use made of them by plaintiff; that Wilmod relied on said warranty and that Nissho American breached the warranty and is responsible to Wilmod for any sum Wilmod would have to pay as a result of a judgment against it in plaintiff's favor. The court finds as a fact that Nissho American ordered the nails from the manufacturer Amagasaki at Wilmod's request but that said nails were shipped directly to Wilmod and were never in the physical custody of Nissho American.

Plaintiff testified that in the early afternoon of August 20, 1962, he purchased a sealed box of nails at a lumber and hardware store operated by Macrose and that he had never before purchased masonry nails. He said that he informed the Macrose salesman that he was in the process of finishing his basement and intended to place paneling over the hard concrete walls and that the salesman told him that 'I should place some Stud material along the concrete wall about two feet apart and then hammer these in with nails, and with that he gave me a box of nails and that these are the type of nails I would use.' Plaintiff further testified that he was directed by the salesman to put up studding and then nail it to the concrete wall and then nail the panels to the studding and that all nailing was to be done with the nails which plaintiff testifies were given him by the salesman for this particular purpose. It is undisputed that on the top of the box of nails sold to

plaintiff appears the following legend: 'MASONRY NAILS HARDENED STEEL (picture 2 1/2 .148 5/16 of nail) ONE POUND NET NAILS UNLIMITED' and that on the bottom of the box appeared the words, ' ONE POUND NET MFRD IN JAPAN FOR WILMOD CO. NYC'

Plaintiff testified that there were no directions inside the box whereas the witnesses for Macrose, Nissho American and Wilmod testified that the manufacturer, as directed by Wilmod, was supposed to insert a slip of instructions in each box which read:

'Directions: Hardened masonry nails can be hammered into mortar, cinder blocks and other comparatively soft masonry in the same way as ordinary nails are hammered into wood. When they are to be used in concrete, brick or other hard substances, it is necessary to first drill a hole about 2/3 of the length of the nail.'

Plaintiff testified that in the afternoon of August 30, 1962 he opened the box of masonry nails and hammered one of them to a point about 3/4 into the 1 stud; that he then picked up the stud and placed it against the concrete wall of the basement and hammered the nail head into the stud and that as the nail made contact with the concrete wall an object flew back and struck him in his right eye. I find as a fact that the object was the head of the nail which had split off from its body.

A substantial portion of the trial was devoted to hearing the testimony of experts on the question of whether the other nails in the box purchased by plaintiff from Macrose were defective. The plaintiff produced as an expert witness a licensed professional engineer who testified that he tested the nails for hardness and found that they were fairly uniform in hardness down the length of the nail; that he had bent the nails and one nail ruptured after 60 degrees of bending and another was bent through 90 degrees without repture. He further testified that tests were performed by driving the nails into concrete and that two of the nails so driven shattered and ruptured at a point approximately half way up the length because the nails were extremely hard and brittle, brittleness being a measure of the shatterability of the nail. In his opinion the nails were not proper for use in concrete. He stated that a concrete nail, properly manufactured, should be so constituted that only the tip should be hard for penetration and that the rest of it should be softer to reduce the brittleness and that the proper way to accomplish this would be to take the hardened nail and heat-treat all but the very tip. He further stated that the nails he examined did not conform to American standard nails manufactured for use for masonry and concrete and that the American nails which he had tested were all annealed in the upper half of the nail whereas the nails in question in this litigation were not.

Wilmod called no expert witnesses and through its vice president conceded that it had never made formal tests of the nails but that it occasionally took sample nails and drove them into oak pallets but not into masonry or concrete.

The third party defendant, Nissho American, produced as an expert witness a metallurgist engineer who testified that at his direction various tests were made on the nails. He found that the nails were uniformly hard and testified that this was normal for a masonry nail and that the tip of a masonry nail should not be harder than the rest of the nail and that he knew of no American nail where there is any difference in the hardness between the tip and the balance of the nail. He testified that there was sufficient ductility (bendability) in the nails and that the nails he tested compared favorably with the requirements and standards of masonry nails manufactured in the United States. He admitted that he did not test the nails by driving them directly into concrete nor did he test them by driving them into concrete into which a hole for the nail had been predrilled. He did testify, however, that the predrilling of a hole, as directed by the instructions allegedly placed in each box of nails, would tend to reduce the shatterability of the nail being hammered into concrete.

In addition to any facts heretofore found the court finds the following to be the facts:

1. The injury to plaintiff's eye was caused by the nail head shattering from the rest of the nail when plaintiff hammered it into concrete which was not predrilled 2. The box of nails purchased by plaintiff did Not contain an instruction sheet stating the procedure to be used when the nails were driven into concrete; and

3. Plaintiff did Not make known to Macrose or any of its agents the particular purpose for which he purchased the nails, i.e., to drill them into concrete, nor was he given any instructions by them as to the manner in which the nails should be used.

RIGHTS IN WARRANTY BY SCHWARTZ v. MACROSE

The rights of the plaintiff against Macrose on the warranty causes of action are governed by the Personal Property Law, since this transaction occurred prior to the effective date of the Uniform Commercial Code. (See Uniform Commercial Code, § 10--101.)

Plaintiff is not entitled to recover from Macrose on the theory of breach of express warranty, since this court has found that the seller made no express warranties. Nor is plaintiff entitled to recover on the theory of breach of implied warranty that the nails were fit for a particular purpose (Personal Property Law, § 96, subd. 1), since this court has found that the plaintiff did not expressly or by implication make known to Macrose 'the particular purpose for which the goods' were required.

The question, therefore, is whether plaintiff has a right to recover on the implied warranty of merchantability which is implied in the sale by section 96(2) of the Personal Property Law which states that 'Where the goods are bought by description from a seller who deals in goods of that description * * * there is an...

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