Serijanian v. Associated Material & Supply Co.

• Citation: 151 N.W.2d 345,7 Mich.App. 275
• Decision Date: 28 June 1967
• Docket Number: Docket No. 36,No. 3,3
• Parties: Dicran SERIJANINA and Armine Serijanian, his wife, Plaintiffs- Appellants, v. ASSOCIATED MATERIAL AND SUPPLY CO., a Michigan corporation, Clarence Zylstra, and Lincoln Brick Company, Defendants-Appellees
• Court: Court of Appeal of Michigan (US)

Page 345

151 N.W.2d 345

7 Mich.App. 275

Dicran SERIJANINA and Armine Serijanian, his wife Plaintiffs- Appellants, v. ASSOCIATED MATERIAL AND SUPPLY CO., a Michigan corporation Clarence Zylstra, and Lincoln Brick Company Defendants-Appellees.

Docket No. 36.

Court of Appeals of Michigan, Division No. 3.

June 28, 1967.

Rehearing Denied Nov. 16, 1967.

Paul A. Ward, Himelstein & Ward, Grand Rapids, for appellants.

William J. Heyns, Grand Rapids, for Associated Material & Supply Co.

Dale M. Strain, Shivel, Phelps, Linsey & Strain, Grand Rapids, for Clarence Zylstra.

Charles C. Lundstrom and J. M. Neath, Jr., Warner, Norcross & Judd, Grand Rapids, for Lincoln Brick Co.

Before BURNS, P.J., and T. G. KAVANAGH and HOLBROOK, JJ.

T. G. KAVANAGH, Judge.

The plaintiffs purchased a brick veneer house from defendant Zylstra in July, 1956. In the spring of 1957, the bricks began to chip, crack, flake and otherwise disintegrate. Although repair was attempted, it was discontinued because all the bricks were deteriorating and would require complete replacement. The defect was that the bricks absorbed too much water, which caused them to decompose after freezing and thawing.

Defendant Zylstra constructed the house and lived in it for 2 years. He had purchased the defective bricks from defendant Associated, which in turn had purchased them from defendant Lincoln Brick Company, which had acquired them from their Indiana manufacturer, Brooklyn Brick Company. Defendant Zylstra cross-claimed against defendant Associated, which cross-claimed against defendant Lincoln Brick.

On January 7, 1964, the trial court granted motions to dismiss by the defendants after the plaintiffs had rested their case. The trial court also denied plaintiffs' motion to reopen proofs.

The dismissal of defendant Lincoln Brick is not appealed.

Plaintiffs raise 9 questions on this appeal, not all of which are necessary to determine.

The first 2 assignments of error deal with the question of whether privity is required to bring an action on implied warranty. The Michigan rule was stated in Spence v. Three River Builders & Masonry Supply, Inc. (1958), 353 Mich. 120, 90 N.W.2d 873. This and later cases put Michigan in the forefront of those states which do not require privity for actions on implied warranty. Hill v. Harbor Steel & Supply Co. (1965), 374 Mich. 194, 132 N.W.2d 54; Piercefield v. Remington Arms Co., Inc. (1965), 375 Mich. 85, 133 N.W.2d 129.

Because plaintiffs here have limited themselves to rights against Associated which come to them by virtue of their succession to the rights which defendant Zylstra had on account of the sale of the bricks for the construction of the house, the trial court correctly held that here the plaintiffs must establish their claim against Associated under the uniform sales act which provides:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, And it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.

'(2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.' (Emphasis supplied). C.L.1948, § 440.15(1) and (2) (Stat.Ann. § 19.255, repealed by P.A.1962, No. 174, C.L.1948, § 440.1101 et seq., Stat.Ann. § 19.1101 et seq.).

The court held that here plaintiffs failed to establish that purchaser (defendant Zylstra) relied on the seller's (defendant Associated) skill or judgment, or that he had purchased the bricks by description from the seller and ruled that they had therefore not made out a case on implied warranty.

The decisive issue on this appeal is whether the trial judge erred in not setting aside the dismissal and permitting plaintiffs to reopen their proofs.

Under our present practice, the motion to dismiss is peculiar to nonjury cases and differs from a motion for directed verdict in that on a motion for dismissal the court may weigh the evidence. GCR 1963, 504.2. The motion is a means of midtrial attack on the sufficiency of the evidence. It aims at an early disposition of the case if plaintiff is unable to show any basis for relief. See committee notes to Rule 504.2, 2 Honigman and Hawkins Michigan Court Rules Annotated (2d ed.), pp. 329--330.

Here a careful examination of the record convinces us that the issues of reliance and sale by description were primarily in the mind of the trial judge, and properly so. The parties, however, did not advert to them either in their proofs or in their arguments. The plaintiff indicated that since reliance was not disputed it should be treated as admitted and the defendant Associated indicated that any reliance by Zylstra would avail plaintiff nothing so it needn't be denied.

Under these circumstances we cannot say that the absence of proof of reliance was the result of mere laxity or nonprosecution by plaintiff.

When plaintiffs requested to call Zylstra and Associated, all the parties were present in the courtroom. No continuance was requested and we do not see how the proceedings would have been prolonged or disrupted in any material sense. In Klee v. Light (1960), 360 Mich. 419, 104 N.W.2d 207, a denial of a continuance was affirmed by our Supreme Court. The requested continuance was to subpoena a witness to the litigated lease but plaintiff had already taken the deposition of this same witness. Even under such circumstances, not nearly as impressive as those in the present case, the Court's words in the Klee Case at p. 429, 104 N.W.2d at p. 212 were guarded:

'This Court would look with some disfavor upon the denial of this motion if it was not for the fact that the deposition of Albert Light had been taken and was on file in the case.'

And at p. 430; 104 N.W.2d at p. 212:

'Therefore (plaintiffs' attorney's) request to continue the matter * * * would have availed him nothing.'

In the case now before this court the claim of an injured party was dismissed because he was not allowed to question one or both of the parties then present in the courtroom. Since only those...