Standard Sewing Mach. Co. v. New State Shirt & Overall Mfg. Co.

• Decision Date: 12 May 1914
• Docket Number: Case Number: 3043
• Citation: 42 Okla. 554,1914 OK 239,141 P. 1111
• Parties: STANDARD SEWING MACH. CO. v. NEW STATE SHIRT & OVERALL MFG. CO.
• Court: Oklahoma Supreme Court

1914 OK 239

141 P. 1111

42 Okla. 554

STANDARD SEWING MACH. CO. v. NEW STATE SHIRT & OVERALL MFG. CO.

Case Number: 3043

Supreme Court of Oklahoma

Decided: May 12, 1914

Syllabus

¶0 1. PARTNERSHIP--Doing Business Under Fictitious Name--Right of Successor to Sue. A corporation which has in good faith acquired a right of action for breach of implied warranty of machines theretofore sold its predecessor in such right may bring and maintain such action, notwithstanding such predecessor in right was a partnership, doing business under a fictitious name, which never complied with sections 3905 and 3907, St. Okla. 1890 (sections 4469 and 4471, Rev. Laws 1910).

2. ASSIGNMENTS--Breach of Implied Warranty--Right to Assign. A right of action for breach of implied warranty that machines are suitable to perform the ordinary work for which they are made is assignable.

3. SALES--Implied Warranty--Sewing Machines. In the absence of contract which negatives the same, there is an implied warranty in the sale of sewing machines that they are suitable to perform the ordinary work for which they are made.

4. SAME--Caveat Emptor--Defect not Discoverable by Examination. The maxim of caveat emptor does not apply where the defect in the machine sold by its manufacturer while it is new upon the market is latent, is not discoverable upon examination, and renders the machine unsuitable to perform the ordinary work for which it is made.

Error from County Court, Oklahoma County; John W. Hayson, Judge.

Action by the New State Shirt & Overall Manufacturing Company, a corporation, against the Standard Sewing Machine Company, a corporation, for damages for breach of implied warranty of machines. Judgment for plaintiff, and defendant brings error. Affirmed.

John E. Du Mars, Ed. S. Vaught, and R. E. Gish, for plaintiff in error

Wilson & Tomerlin and Burwell, Crockett & Johnson, for defendant in error

THACKER, C.

¶1 Plaintiff in error will be designated as defendant, and both defendant in error, a corporation, and its predecessor in business, a partnership which was finally merged into said corporation, will be designated as plaintiff, in accord with the respective titles of the parties to this action in the trial court.

¶2 At the outset we will state that said "predecessor in business" was a partnership composed of three members doing business under the firm name of the present plaintiff from about August 6, 1906, until about July 25, 1907, when the concern was incorporated in said name and with all the partners as stockholders in such corporation, the husband of one and the son of another partner being the only stockholders in the corporation who were not members of the partnership; and the corporation at the time of its organization succeeded to and took over by assignment, all the property, rights, liabilities, and business of the copartnership.

¶3 Plaintiff's said "predecessor" at no time complied with the provisions of sections 3905 and 3907, St. Okla. 1890 (sections 4469 and 4471, Rev. Laws 1910), which read as follows:

"Section 3905. Except as otherwise provided in the next section, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the district court of the county or subdivision in which its principal place of business is stated, a certificate, stating the names in full of all the members of such partnership, and their places of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county."

"Section 3907. The certificate filed with the clerk of the district court provided in the second preceding section, must be signed by the partners and acknowledged before some officer authorized to take acknowledgments of conveyances of real property. Persons doing business as partners under a fictitious name, contrary to the provisions of this article, shall not maintain any action on or on account of any contracts made or transactions had in their partnership name in any court of this state, until they have first filed the certificate and made the publication herein required: Provided, however, that if such partners shall at any time comply with the provisions of this article, then such partnership shall have the right to maintain an action in all such partnership contracts and transactions entered into prior to as well as after such compliance, and the disabilities imposed on partnerships for failure to comply with this article shall be thereby removed."

¶4 This being an action for breach of an alleged implied warranty of quality and fitness of fifteen sewing machines in a sale of the same by defendant to plaintiff in October, 1906, it is urged by defendant that plaintiff cannot maintain this action because of failure of its said "predecessor" to comply with the provisions of said sections 3905 and 3907, supra; and the following cases are cited in support of their contention: Choctaw Lumber Co. v. Gilmore, 11 Okla. 462, 68 P. 733; Baker v. Van Ness & Co., 25 Okla. 34, 105 P. 660; Smith v. Woods, 33 Okla. 233, 124 P. 1088.

¶5 In the Choctaw Lumber Co. case, supra, it was merely held that after commencing suit without compliance with said sections 3905 and 3907, supra, the plaintiff could not confer upon one of its members the right to maintain that suit by assigning to him its interest therein; and this was evidently upon the theory that the right to "maintain," denied by the statute, includes the right to begin an action, as held in the Baker case, supra. Neither of the cases cited in any way appears to support defendant's contentions.

¶6 The only penalty imposed by sections 3905 and 3907, supra, or to be found at all for failure to comply therewith is the disability to maintain any action, which includes the disability to begin any action, so long as they have not complied with said sections; and it seems clear that these sections of the statute do not inhibit such partnership from in good faith selling, assigning, or otherwise transferring its property and rights of action nor its successor in right, who takes the same in good faith, from bringing and maintaining such action; and we do not think the point urged by defendant against plaintiff's right to bring and maintain this action can be sustained.

¶7 We think there is no doubt but that, if there was a breach of implied warranty in the sale of these machines, the right of action thereon was assignable by plaintiff's predecessor to the plaintiff. See section 4268, St. 1890 (section 6740, Rev. Laws 1910); C., R. I. & P. Ry. Co. v. Bankers' Nat. Bank, 32 Okla. 290, 122 P. 499; Kansas City, M. & O. Ry. Co. v. Shutt, 24 Okla. 96, 104 P. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255.

¶8 Plaintiff, a manufacturer of overalls and shirts, in about October, 1906, purchased of defendant, a manufacturer of sewing machines, 25 such machines, including said fifteen which are described in the written order therefor as "15 F. heads complete with tabling," at $ 487.50, terms "3% ten days or 90 days."

¶9 This written order, which does not expressly nor otherwise exclude the idea of the usual implied warranty as to quality and fitness, was not given until some three days after plaintiff had orally ordered the machines, and defendant, through its agent, James P. Kerr, had installed them in plaintiff's plant in Oklahoma City; and at all times pertinent to this case defendant knew the purpose for which plaintiff purchased and kept the machines; i. e., in the first instance, for making shirts, and later, when defendant had undertaken by some alteration therein to adapt them to such new purpose, for making overalls.

¶10 It appears that so long as the proper tension of the leather or composition belt of the machines was retained they did good work; but it further appears that the precise tension requisite to good work could not be maintained for any considerable length of time with such belts, nor was there any belt that could be made and used upon such make of machines that would so retain the proper tension; and whenever the tension was not just right there was such want of coordination,...