Stewart v. Gainesville Glass Co., Inc.

• Decision Date: 12 April 1974
• Docket Number: No. 48839,No. 3,48839,3
• Parties: , 14 UCC Rep.Serv. 934 W. Woodrow STEWART v. GAINESVILLE GLASS COMPANY, INC., et al
• Court: Georgia Court of Appeals

Page 857

206 S.E.2d 857

131 Ga.App. 747, 14 UCC Rep.Serv. 934

W. Woodrow STEWART v. GAINESVILLE GLASS COMPANY, INC., et al.

No. 48839

Court of Appeals of Georgia, Division No. 3.

April 12, 1974.

Rehearing Denied May 9, 1974.

Syllabus by the Court

An express warranty as to the quality, character, soundness, title, etc. to personalty runs only to the original purchaser unless the clear language of the contract of sale, including the warranty, makes it clear that it is also intended to extend to some identifiable third party or parties. The warranty does not run with the chattel. Second and subsequent buyers of the property, not being in privity with the original seller, generally may not enforce the warranty.

W. W. Stewart brought suit against Gainesville Glass Company, Inc. and two other corporations, Shatterproof Glass Corporation and Shatterproof of Georgia, Inc. (parent-subsidiary corporations hereafter jointly referred to as 'Shatterproof'), seeking to recover for breach of express and implied warranty with respect to insulating window glass installed in his home which later proved to be defective and failed to comply with the warranties. Shatterproof moved for summary judgment on the grounds, insofar as pertinent here, that plaintiff was not in privity of contract with it and therefore could not recover for breach of either express or implied warranty. The trial court agreed and granted summary judgment to Shatterproof on that basis, and plaintiff appeals with the assertion that lack of privity of contract is no defense to an action against the manufacturer of personal property for breach of express, as opposed to implied, warranty.

The record shows that in 1967 Shatterproof's subsidiary, Thermoproof Glass Company, manufactured the glass units in question and sold them to Gainesville Glass, Thermoproof's warranty responsibilities having been assumed by Shatterproof for purposes of this litigation. Gainesville Glass, as subcontractor, in turn sold the units to Hoyt Nix Construction Company, as general contractor, during the construction of the home, with the installation work being performed by Gainesville Glass as subcontractor. Apparently Hoyt Nix built the house for someone who in turn sold it to the plaintiff since the record shows by way of a pretrial order that 'Parties agree that plaintiff was not the original owner of the property at time of installation of the windows.' In any event plaintiff purchased the home, whether from Hoyt Nix or from someone else, with the windows installed, one of the reasons for his purchase being the 'nice view of Lake Lanier then visible through said glass.'

During this period of time Thermoproof and, for purposes here, Shatterproof, had promulgated a set of papers which appear in the record bearing the notation 'A.I.A. File No. 26-A-9,' captioned 'Therm-O-Proof Insulating Glass-made more ways to fit more ideas,' and depicting 'Specially fabricated bronze units in Western Michigan University Student Center, Kalamazoo, Michigan.' The papers, which are several pages in length, contain technical material and descriptions as to how the insulating glass is made, 'What to Specify,' 'How Therm-O-Proof Performs,' 'Approved Glazing Instructions,' and other matter generally extolling the advantages and virtue of Thermoproof Insulating Glass. Included is the following: 'Thermoproof Glass Company is a subsidiary of Shatterproof Glass Corporation of Detroit, Michigan with an international reputation for exceptional quality and reliable service. Each Thermo-O-Proof insulating glass unit is backed by a 10 year warranty plus Shatterproof's 44 years of glass fabricating experience . . . The name Therm-O-Proof appears lightly etched on every unit . . . your sign of the quality which is backed by the 10 year warranty. The trademark should be visible from the inside in the lower right-hand corner when glazed.'

The express warranty contained in the papers is as follows: 'Therm-O-Proof 10-Year Warranty: Thermoproof Glass Company makes no warranty, Express or implied, except that for a period of ten (10) years from the date of manufacture it warrants that under normal conditions, material obstruction of vision resulting from film formation or dust collection between the interior glass surfaces of Therm-O-Proof insulating glass units will not occur. This warranty will become void if Therm-O-Proof units are not handled and installed in accordance with the Therm-O-Proof Approved Glazing Instructions as printed on the Therm-O-Proof product label factory-affixed to all Therm-O-Proof units, in the current edition of Sweet's Architectural File 7a/th, and in other Thermoproof nationally distributed literature; and it will be void (on certain other conditions with respect to improper handling, installation, etc.). Thermoproof Glass Company reserves the right to have all units reported as being defective under this warranty field-inspected by a qualified factory representative and returned to the factory. Our maximum liability under this warranty shall be the delivery of replacement Therm-O-Proof units to the shipping point nearest the place of installation. This warranty does not apply to such replacement lights beyond the ten-year period applying to the original unit; nor does it apply when Therm-O-Proof units are used in ships, moving vehicles or outside Continental United States.' According to Thermoproof's affidavit, the above warranty and glazing instructions were in effect in 1967 when the units were manufactured and installed.

Approximately four years after manufacture and installation in the home purchased by plaintiff, the units in question became hardened and brittle and developed a material obstruction of vision because of film formation, moisture and dust collection inside the glass surfaces. Shatterproof faulted Gainesville Glass for failure to install in accordance with the Approved Glazing Instructions and contended below that the warranty was thus voided. Since the trial court limited its judgment to the privity issue, no other is before us and we must likewise limit our consideration to that matter.

Telford, Stewart & Stephens, Charles W. Stephens, John E. Girardeau, Gainesville, for appellant.

Whelchel, Dunlap & Gignilliat, George L. Simpson, III, Gainesville, for appellees.

EBERHARDT, Presiding Judge.

While we agree that the result sought by appellant is a very desirable one and that it is compatible with general commercial practices extant in this country, yet we have been unable to square it with the law as heretofore decided and by which we are bound.

Prior to 1957 when the Manufacturer's Liability statute was adopted (Ga.L.1957, p. 405), there could be no tort liability against the manufacturer of an item beyond the first purchaser or consumer. An exception appeared when sealed packages were sold first to a wholesaler and then to a retailer before it reached the consumer in the channels of trade, the courts having considered that the wholesaler or retailer was but a conduit from the manufacturer to the consumer. Armour & Co. v. Miller, 169 Ga. 201, 149 S.E. 698. The same was true as to items which were, by their nature, ture, inherently dangerous....