Timberland Lumber Co. v. Climax Mfg. Co., 4848.
| Decision Date | 28 September 1932 |
| Docket Number | No. 4848.,4848. |
| Citation | 61 F.2d 391 |
| Parties | TIMBERLAND LUMBER CO., Limited, v. CLIMAX MFG. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Benjamin J. Jarrett, of Pittsburgh, Pa., Knox Walkem, of Vancouver, B. C., Canada, and McCook & Jarrett, of Pittsburgh, Pa., for appellant.
W. Pitt Gifford, and Gunnison, Fish, Gifford & Chapin, all of Erie, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
The Timberland Lumber Company brought this action in assumpsit to recover damages from the Climax Manufacturing Company on the warranties and promises of the Climax Company to the Timberland Company that a locomotive built by the Climax Company and sold to the Timberland Company through the Vancouver Depot Machinery Company, Limited, an independent dealer, would comply with certain requirements.
To the statement of claim, the Climax Company filed an affidavit of defense raising questions of law and averring that the statement does not disclose any claim on which a judgment could be legally entered in favor of the Timberland Company.
The District Court sustained the defense of the Climax Company, but allowed the Timberland Company to amend its statement of claim. The Climax Company again filed an affidavit of defense averring that the amended statement did not set forth a cause of action. The District Court was of the opinion that it must find in favor of the Climax Company and thereupon ordered judgment to be entered for it. The Timberland Company appealed to this court.
The Timberland Company is engaged in the lumber business. It desired to purchase a locomotive to be used for work on its timber lands. It required a locomotive that would develop sufficient power to haul fifteen cars of logs, each weighing thirty-three tons, over tracks having a grade of 3½ per cent., at a speed of ten to twelve miles per hour, in a manner that would be efficient, smooth, and without vibration.
Accordingly, the Timberland Company entered into a contract with the Vancouver Company, the independent machinery dealer, whereby the latter agreed to sell to the former a locomotive to be designed and constructed by the Climax Company according to the specifications and for the purposes of the Timberland Company. The Timberland Company agreed to pay and did pay the Vancouver Company $36,530 for the locomotive.
Thereafter the Climax Company contracted to manufacture and the Vancouver Company to purchase the locomotive for $27,600, less certain discounts. This contract was in writing and expressly excludes all agreements and understandings outside of it.
The Climax Company built the locomotive and shipped it directly to the Timberland Company. The Timberland Company avers that the locomotive has failed to meet the requirements of service in accordance with the guarantees.
Apparently, there are separate transactions of sale between the Vancouver Company and the Climax Company, and the Vancouver Company and the Timberland Company. If the two transactions of sale were separately considered, there would be no privity of contract between the Timberland Company and the Climax Company, and the Timberland Company would fail, as the ultimate purchaser in that case would buy the locomotive from an independent dealer, and the dealer, in turn, from the manufacturer. The Timberland Company concedes that the mere resale of a warranted article will not give a subpurchaser a right to sue the manufacturer or original seller for defects of quality. 2 Williston, Contracts, § 998, p. 1878; Wolstenholme, Inc., v. Randall & Bro., 295 Pa. 131, 144 A. 909. But the Timberland Company contends that it has stated an express contract between the Climax Company and itself; and it must be kept in mind that the question here is whether the Timberland Company's statement of claim discloses a cause of action against the Climax Company on which a judgment may be legally entered in favor of the Timberland Company. The Timberland Company says that by reason of the warranties and promises made to it by the Climax Company, through the Vancouver Company, its agent for that purpose, it was induced to contract to purchase the locomotive from the Vancouver Company.
It may be unusual but it is not impossible for a manufacturer to contract independently with both a dealer and the purchasing consumer. If a manufacturer wishes for some reason of his own to guarantee his product, he can make a valid contract with a person other than his immediate purchaser, if the elements of the law of...
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