Standard Paint Co v. E. K. Vietor & Co

• Decision Date: 15 March 1917
• Citation: 91 S.E. 752
• Court: Virginia Supreme Court
• Parties: STANDARD PAINT CO. v. E. K. VIETOR & CO.

91 S.E. 752

(120 Va. 595)

STANDARD PAINT CO.

v.E. K. VIETOR & CO.

Supreme Court of Appeals of Virginia.

March 15, 1917.

Rehearing Denied March 28, 1917.

Error to Circuit Court of Richmond.

Action by E. K. Vietor & Co. against the Standard Paint Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

O'Flaherty, Fulton & Byrd and Thos. B, Byrd, all of Richmond, for plaintiff in error.

Willis B. Smith, of Richmond, for defendant in error.

PRENTIS, J. The Standard Paint Company, manufacturer and dealer in a prepared and ready to lay roofing, designated by them as "Ruberoid, " sold to E. K. Vietor, trading as E. K. Vietor & Co., during the years 1907, 1908, and 1909, a considerable quantity of their roofing to be put on the roofs of his tobacco warehouses and factories, part by the vendor, and the residue under its direction. Previous to these contracts Vietor had purchased ruberoid roofing from a dealer in the city of Richmond, and not directly from themanufacturer, and had applied it to one of his buildings. This roofing proved very unsatisfactory to him and upon his making complaint the manufacturer claimed that the reason the roof complained of leaked was because the material, ruberoid, had not been properly applied, and especially because the sheathing boards upon which the roof was laid had thereafter shrunk because green; that they were of varying widths and uneven. To correct this difficulty the plaintiff in error agreed, for the sum of $500, to supply and apply their waterproof felt to this particular roofing, and claimed that this would remove all cause of complaint. About the same time Vietor bought 125 squares more ruberoid roofing directly from the Standard Paint Company, with the express understanding; however, that the material was to be applied by the vendor to the roof of another adjacent building of the vendee. In 1908 and in 1909 Vietor bought more ruberoid roofing for his factory and warehouses, upon similar conditions, that is, that it was to be applied to the roofs by the vendor, or under the direction of its expert agents. The total cost of such roofing was $1,827. It was all sold upon assurances that, if properly applied, the roof would not leak, accompanied by a typewritten paper or guaranty reading thus:

"On payment of invoice, we hereby agree in case of leakage caused by any defect in the ruberoid roofing or its application from ordinary careful use during the ten years ensuing from* * * [the date when the roof has been completed] to make the necessary repairs at our own expense immediately upon notice of said leakage being given us.

"But this guaranty shall not be construed to cover damage by fire, tempest, or other extraordinary means or causes, and is made with the distinct understanding that the entire surface of the roofing is to be given one coat of our ruberine paint within four (4) years after it is laid; said coat to consist of one gallon of said ruberine paint for not more than 200 square feet of surface."

During all this period numerous complaints from time to time were made of the insufficiency of the roofing, and from time to time the vendor sent experts to inspect it, and each time made repairs thereto and stopped leaks therein, until in 1912 it declined to make any further repairs, basing the refusal solely upon the claim that the defects then in the roofs were caused by a hailstorm, and that it was not responsible for such damage. The vendee after ample notice to the vendor of his purpose, unless the leaks were stopped, to put a new roof on the building at vendor's expense, did so, at an expense of $2,100, and introduced evidence tending to prove damage to tobacco stored in the warehouses caused by the leaks in the roofs. There are many other facts brought out in the testimony, and so far as they are material they will be hereafter referred to.

There was a verdict and judgment for $1,417.50 in favor of the vendee, and of that judgment the vendor is here complaining.

There are 14 bills of exception, but in the petition they are reduced to 6 assignments of error, which we will consider.

1. There was a demurrer to the original declaration, which was overruled. It is only necessary to say as to this that section 3272 of the Code makes it plain that this action is without error, because special demurrers have been abolished in Virginia by that statute, and the assignment of grounds of demurrer pointed out no defect not thereby cured.

After the plaintiff had rested and the defendant had introduced one witness, who had been examined in chief and cross-examined, the court allowed the plaintiff to amend the declaration by setting out the precise dates upon which the various contracts and sales had been made, and, the declaration having been thus amended, the point was made that the declaration, as amended, mis-joins causes of action.

The action is trespass on the case in tort, and the claim is made that the third count in the declaration is a count in contract, and not in tort. The only amendment which was made in the declaration, as above indicated, was the addition of certain dates.

We are clearly of opinion that, even if the point has merit, inasmuch as the vendor had failed to specify this ground in the original demurrer, and had pleaded not guilty, it had been waived. 31 Cyc. 731. This, of course, is sufficient to dispose of the point.

However, even if this ground had been specified in the demurrer to the original declaration, it should have been overruled. The third count in the declaration which is complained of alleges a breach of warranty, and in Trice v. Cockran, 8 Grat. (49 Va.) 442, 56 Am. Dec. 151, this court determined that case is a proper remedy for breach of warranty as to the sale of personal property.

In Ferrill v. Brewis' Adm'r, 25 Grat. (66 Va.) 769, this court said:

"Another rule of the courts is to treat the count as partaking of the nature of the action. So that, if the action is ex delicto, the count will be intended as ex delicto also, unless there be something in its form and structure which plainly forbids such intendment. And it is not unusual for the declaration to contain allegations sufficient to support it, either in tort or in assumpsit. And this upon the ground that the same circumstances which show a breach of duty constituting a tortious neglect show also a breach of promise implied from the consideration of the hire. Gelston v. Burr, 11 Johns. [N. Y.] 482."

"Wherever the causes of action are of the same nature and the same judgment is to be given in all, they may be joined in one declaration." 4 Min. Inst. (3d Ed.) 1160.

The only difference between the third count in the declaration and the other two counts, so far as this question is concerned, is that the first two counts are clearly and plainly in tort, alleging deceit, guilty knowledge, and fraud. Each of the three counts, however, also alleges the warranty and its breach, and are plainly intended to include the same general cause of action, and, though the declara-tion is inartificially drawn, it is so framed that the defendant could not possibly have been deceived as to the subject of the controversy.

In Harvey v. Skipwith, 16 Grat. (57 Va.) 403, an analogous question was thus disposed of by this court:

"Each of the counts is a count in case for a tort. The second is confessedly so; and the statements and allegations in respect to the contract of hiring contained in the first do not impress upon that count a different character."

The gist of the counts in that case, as in this, is the same. Here the action is based upon a breach of warranty, and, while the complainant may, if he chooses, waive the tort and sue upon contract, he is equally at liberty, where there is a breach of warranty, to sue in tort; and this is what the vendee did in this case.

2. It is claimed that the court erred in permitting the plaintiff to amend the declaration during the progress of the trial.

The circumstances under which the amendment was allowed were that during the trial the vendor's counsel complained of the erroneous statements in the declaration as to the dates of the various sales. It is not perceived that these were material allegations. The dates were each alleged under a videlicet, and it seems to us that the precise dates were immaterial, except as they might have been necessary to give the defendant notice. In this case the defendant knew the precise dates of each sale, and after one of its witnesses had supplied those dates the court permitted each count in the declaration to be amended by the insertion of the precise dates which had just been proved by the vendor's witness. As above indicated, we do not think that these were material amendments, but, if they were, they are fully authorized by the statute (section 3384 of the Code) which provides:

"If, at the trial of any action, there appears to be a variance between the evidence and allegations or recitals, the court, if it consider that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the pleadings to be amended, on such terms as to the payment of costs or postponement of the trial, or both, as it may deem reasonable. Or, instead of the pleadings being amended, the court may direct the jury to find the facts, and, after such finding, if it consider the variance such as could not have prejudiced the opposite party shall give judgment according to the right of the case."

In addition to this there is the act approved March 27, 1914 (Acts 1914, c. 331, p. 641), entitled "An act to simplify and expedite the administration of justice in this state by the elimination of useless technicalities and vexatious delays and permitting amendments under certain conditions in causes hereafter instituted, " which reads as follows:

"Be it enacted by the general assembly of Virginia, That in any suit or action hereafter instituted, the court may at any time, in furtherance of...