Universal Inv. Corp. v. Carpets Inc.

• Decision Date: 01 April 1965
• Docket Number: No. 10165,10165
• Parties: d 336 UNIVERSAL INVESTMENT COMPANY, Plaintiff and Respondent, v. CARPETS, INCORPORATED, Defendant and Appellant.
• Court: Utah Supreme Court

Page 564

400 P.2d 564

16 Utah 2d 336

UNIVERSAL INVESTMENT COMPANY, Plaintiff and Respondent, v. CARPETS, INCORPORATED, Defendant and Appellant.

No. 10165.

Supreme Court of Utah.

April 1, 1965.

Mabey, Ronnow & Madsen, Gordon Madsen, Salt Lake City, for appellant.

Pugsley, Hayes, Rampton & Watkiss, Zar E. Hayes, Salt Lake City, for respondent.

CROCKETT, Justice.

Plaintiff sued the defendant for $7,500 damages for breach of warranty on draperies which defendant had furnished for plaintiff's 100-unit apartment complex known as the Susan Kay Arms in northwest Salt Lake City. A jury found the issues in favor of the plaintiff and assessed damages of $3,750, to which the court added a reasonable attorney fee, as provided by the contract, in the sum of $751.83. Defendant appeals.

We review the evidence and all reasonable inference that fairly may be drawn therefrom in the light most favorable to the jury verdict and the judgment entered thereon. ¹

As the construction of the apartments referred to was being completed, during the period from October, 1961, to June, 1962, in accordance with the terms of a written contract, defendant furnished and installed some synthetic fabric white draperies. After the installation was complete, at the time of final payment in June, 1962, the defendant executed a written guarantee. It reaffirmed the assurances of the original contract against 'latent defects, faulty material and/or workmanship' and extended the guarantee against faulty draperies until September 16, 1963, the projected FHA inspection date. Meanwhile, sometime about April, 1962, while the apartments were still being furnished, the first of the draperies which had been installed began to discolor, taking on darker shades, and showing some spotting and streaking. They were dry cleaned, but the discoloration persisted and continued to become worse. After complaints about this, defendant replaced some of the draperies, but billed the plaintiff for their cost. There were some negotiations between the parties as to the extent of the defects and whether the guarantee covered them, which ended in an impasse and resulted in this lawsuit.

The principal issue between the parties is whether the change in color of the draperies as above described, was a breach of the defendant's warranty. The defendant argues that the warranty mentioning only 'latent defects, faulty material and/or workmanship' is literal and exclusive; and that inasmuch as color is not expressly mentioned, is not covered. It is to be conceded that ordinarily the interpretation of the terms of a document is a question on law for the court, but this is not necessarily true in all situations. Where, as here, it is made to appear that the terms may have a particularized application or meaning and there is room for uncertainty and disagreement as to whether the warranty against latent defects or faulty materials includes a guarantee against the type of discoloration that occurred to these draperies, it was proper for the trial court to regard this dispute as an issue of fact ² and to allow extraneous evidence by experts in this field as to the generally understood and accepted meaning of that language as used in the transaction in question.

In support of its position, defendant presented expert witnesses who testified that according to the custom and practice in the trade the type of warranty above referred to given by defendant does not include fastness of color. On the other hand, plaintiff presented opposing witnesses, a Mr. Thomas Frank and Mr. Gordon Harry, who, on the basis of their knowledge and experience, demonstrated qualifications as experts in this field. The import of their testimony was that the discoloration found in these draperies does constitute a breach of the warranty against latent defects and faulty materials. Notwithstanding the defendant's protestations to the contrary, the jury was entitled to accept and believe the testimony of the plaintiff's experts.

Defendant further singles out as reversible error permitting Mr. Frank to state his judgment as to the difference in value between the draperies as they should have been and after they had become discolored, bearing on the question of damages. It is urged that his testimony is without proper foundation and probative value since he did not see the draperies until after the period of warranty had expired; and in fact not until about two weeks before the trial. Mr. Frank did base his judgment in part upon the assumption that the condition of the draperies when he saw them was the same as during the time when the warranty was in force. However, the fact is that the draperies were described by other witnesses as being in that same condition during the warranty period. The opinion of an expert is not rendered inadmissible because it may be based upon facts proved by the observations of others. ³ In many instances it would be quite impractical for an expert to have firsthand personal knowledge of all of the facts upon which he bases his testimony. His opinion may be based upon other credible evidence which he is willing to accept. Whatever deficiency, if any there was, in the fact that Mr. Frank...