Ted Lansing Supply Co., Inc. v. Royal Aluminum and Const. Corp.

• Decision Date: 24 April 1981
• Docket Number: No. 790596,790596
• Parties: TED LANSING SUPPLY COMPANY, INC. v. ROYAL ALUMINUM AND CONSTRUCTION CORPORATION. Record
• Court: Virginia Supreme Court

Page 228

277 S.E.2d 228

221 Va. 1139

TED LANSING SUPPLY COMPANY, INC. v. ROYAL ALUMINUM AND CONSTRUCTION CORPORATION.

Record No. 790596.

Supreme Court of Virginia.

April 24, 1981.

Daniel S. Brown, Roanoke (Hazlegrove, Dickinson & Rea, Roanoke, on brief), for appellant.

Fergus B. Norton, Roanoke, on brief, for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

STEPHENSON, Justice.

Ted Lansing Supply Company, Inc., (Lansing) appeals a judgment of the trial court approving a jury verdict in the amount of $25,000.00, returned in favor of Royal Aluminum and Construction Corporation (Royal) on its counterclaim against Lansing.

The dispositive issue on this appeal is whether the trial court erred in submitting to the jury the issue of Lansing's liability upon a theory of breach of implied warranty when this theory was not raised by the pleadings.

Lansing is a distributor of certain "replacement windows" manufactured by Replacement Products Industries Corporation. Royal purchased a quantity of these windows from Lansing and installed them in houses of its customers. Subsequently, Royal began receiving complaints from its customers that the windows were drafty and that moisture formed between the panes of the windows.

Lansing initiated these proceedings by filing two motions for judgment against Royal for debts due on account. (These claims were decided in favor of Lansing and are not in issue here.) Royal counterclaimed, alleging it suffered damage as the result of Lansing's breach of its warranty that the windows were "Draft Free" and "Condensation Free".

Lansing's account claims and Royal's counterclaim for breach of warranty were tried before a jury. At the close of Royal's case in chief on the counterclaim, Lansing moved the court to strike Royal's evidence and enter summary judgment for Lansing on the grounds that Royal had failed to prove the existence or breach of any express warranty, and that Royal had failed to prove damages resulting from any breach of warranty. The trial court did not expressly rule on the motion, but, sua sponte, and over Lansing's objection, interjected an implied warranty of fitness theory of recovery. At the conclusion of all the evidence, Lansing renewed its motion to strike Royal's evidence, and the trial court sustained the motion as it pertained to express warranty ¹ but overruled it insofar as an implied warranty theory was concerned. The case was submitted to the jury on the theory of an implied warranty and a verdict was returned on the counterclaim in favor of Royal in the amount of $25,000.00. Lansing's motion to set aside the verdict and to enter final judgment in its favor was overruled by the trial court, and this appeal ensued.

An examination of Royal's counterclaim shows that it alleged the breach of an express warranty ² and that it contains no allegation of the existence or breach of an implied warranty.

It is firmly established that no court can base its judgment or decree upon facts not alleged or upon a right which has not been pleaded and claimed. Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935). "Pleadings are as essential as proof, and no relief should be granted that does not substantially accord with the case as made in the pleading." Bank of Giles County v. Mason, 199 Va. 176, 180, 98 S.E.2d 905, 907 (1957); see also, Lee v. Lambert, 200 Va. 799, 802, 108 S.E.2d 356, 358 (1959). This rule is clearly stated in Potts as follows:

The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed.... Pleadings are as essential as proof, the one being unavailing without the other. A decree cannot be entered in the absence of pleadings upon which to found the same, and if so entered it is void.... Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint or defense.......