Valley Shoe Corporation v. Stout

Decision Date24 August 1938
Docket NumberNo. 11035.,11035.
Citation98 F.2d 514
CourtU.S. Court of Appeals — Eighth Circuit

Daniel N. Kirby, of St. Louis, Mo. (Ralph Kalish and Everett Paul Griffin, both of St. Louis, Mo., on the brief), for appellant.

Frank Y. Gladney, of St. Louis, Mo. (Jones, Hocker, Gladney & Grand and Web A. Welker, all of St. Louis, Mo., on the brief), for appellees.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

This action at law was brought by the appellant, a corporation engaged in the manufacture of women's shoes, against the appellees, manufacturers of leather, to recover damages for an alleged breach of warranty that highly colored leather, purchased by the appellant from the appellees in the year 1932 for the purpose of lining women's shoes, would not fade or crock. Issues were joined, the case was tried to a jury, and from the judgment entered upon the verdict in favor of the appellees, this appeal is taken. The parties will be referred to as "plaintiff" and "defendants".

The plaintiff challenges the court's instructions and some of its rulings upon evidence.

In its amended petition the plaintiff alleged:

"That on or about December 18, 1931, plaintiff was considering the possibility of making and introducing into the market as a novelty, various kinds of women's shoes having bright or highly colored kid leather linings of various colors, to-wit, orange, blue, green and red, and thereupon plaintiff informed defendants' said sales agent that plaintiff wished to make and market such novelties, being women's footwear having highly colored leather linings more attractive in appearance than the pastel shades then being used. That plaintiff then asked defendants' said agent whether defendants could and would make for and furnish to plaintiff bright or highly colored leather linings for women's shoes, the colors of which would be fast, would `stick', and would not `crock' (i. e. rub off), or fade, and in that connection plaintiff informed said agent that several other tanners had refused to make such bright colored lining leathers, because they were afraid such colors would `crock', i. e. would rub off, or fade.

"That thereupon defendants' said agent stated to plaintiff, that defendants' tannery had just perfected a new waterproofing process which would be used in making said leathers and that said process would cause said leathers, if made by defendants for plaintiff, to have fast and high colors of the kinds desired by plaintiff to be used for the linings of women's shoes, and that said colors would not fade or `crock' (rub off).

"That thereupon defendants' said agent solicited an order from plaintiff for such leathers, and stated to plaintiff that defendants could and would make for, and furnish to, plaintiff, such leathers with the desired colors which would prove fast, would stick, and would not fade or rub off or `crock', and that if plaintiff should order such leathers from defendants, the plaintiff would have no trouble in respect of the colors fading or `crocking' (coming off).

"That thereupon plaintiff furnished said agent with samples of the particular high colors desired, and requested him to inquire of defendants and particularly of those in charge of defendants' tannery, in order to make certain that the defendants could furnish leathers having the desired bright colors which would `stick' and not fade, or rub off (`crock').

"That shortly thereafter, defendants' said agent again called upon plaintiff, and stated to plaintiff, that he had heard from defendants and that defendants could and would make, and furnish to plaintiff, the said desired leathers with the said desired bright colors which would `stick' and would not fade or `crock' * * *.

"That each and all of the said statements and representations made to plaintiff as aforesaid, were made in order to induce, and they did induce, plaintiff to buy such leathers from defendants, and they constituted warranties that such leathers, when sold and delivered by defendants to plaintiff, would have the high colors ordered, and that said colors would `stick' (prove to be `fast'), and would not fade or rub off (i. e. `crock'), and would be suitable for the said use which plaintiff intended to make of them, said intended use being well known to defendants at the times when said warranties were made and when said leathers were ordered by plaintiff and delivered to plaintiff by defendants."

The plaintiff further alleged that it lined about 16,929 pairs of shoes with the leather complained of; that the linings of 5,238 pairs of such shoes proved defective and resulted in a loss to it of $22,392.57.

To the amended petition the defendants interposed a general denial.

Upon the trial the evidence introduced by the plaintiff tended to prove that in 1932, as an innovation, it undertook to manufacture and market women's shoes with highly colored leather linings; that women's shoes had been, ordinarily, lined with pastel colored leather; that several tanners of leather, interviewed by the plaintiff, refused to furnish highly colored leather for lining shoes, on the ground that the colors of such leather would rub off and crock; that Wills Engle, a salesman of the defendants in St. Louis agreed, on behalf of the defendants, to furnish highly colored lining leather, and expressly represented and warranted that such leather would not fade or crock; that, in reliance upon this representation and warranty made by Wills Engle, the plaintiff ordered the leather and used it, after having received samples which were tested and found apparently satisfactory; that Wills Engle was the son and employee of Alfred N. Engle, who had long been the sales representative of the defendants in St. Louis; that Alfred N. Engle in 1926 or 1927 had introduced Wills Engle to the plaintiff's officers as the defendants' local sales agent, and that they thereafter frequently dealt with him in that capacity, and that in selling the plaintiff the leather in suit he stated that he had authority to make the representation and warranty upon which it relied. The plaintiff produced no evidence that the defendants themselves had ever represented that the leather which they furnished would not crock, or that they had ever expressly authorized Wills Engle to make the warranty or representation which the plaintiff claims was made. There was evidence introduced by the plaintiff to sustain its allegations as to damages.

Wills Engle, as a witness for the defendants, testified that he was employed by them as a salesman in St. Louis; that he took the orders for the leather in suit; that he never represented that such leather would not crock or that the colors would not fade or rub off; and that he knew, when he sold the leather, that it would crock. Other evidence of the defendants tended to prove that all artificially colored leather crocks; that there is no way known to the trade to dye or color leather so that it will not crock; that pastel or neutral colored leather, when used for the lining of women's shoes, is unobjectionable because the color as it rubs off does not noticeably discolor women's stockings; that the defendants have never warranted that their colored leather would not crock or that its colors were fast, and have never authorized their agents to do so, and that warranties of color, either express or implied, were unknown in the leather business.

At the close of the evidence, there were, aside from the question of damages, but two controverted questions of fact for submission to the jury:

1. Did Wills Engle represent that the leather in suit would not crock?

2. If he did make that representation, was it made with the authority of his principals, the defendants?

The plaintiff, however, contends that there was a third question lurking in the case, namely, the question of implied warranty of the fastness of the color of the leather, and that neither the pleadings nor the proof negatived the existence of an implied warranty of the suitability of the highly colored leather for the purpose for which it was to be used; and that the court below should have submitted that question to the jury.

The case was tried upon the theory of an express warranty. In objecting to certain evidence going to the question of implied warranty, plaintiff's counsel said: "This is a suit brought under express warranty." Again, in objecting to evidence as to whether it was customary to guarantee the fastness of the color of leather, he said: "I object to whether it has ever been the practice to do that, as being entirely immaterial in this case. If it was done in this case and they represented it to us, that is sufficient."

The rulings of the court were favorable to the plaintiff on both of these objections.

In his argument to the jury, one of the defendants' counsel said: "If you analyze all the testimony, all the documents that have been introduced, you have this simple question: warranty or no warranty? If you shall ultimately believe and find that Wills Engle did not warrant this leather not to crock or not to rub off, then the other incidents in connection with the evidence become null and void. Now, the testimony on that point, as indicated by Mr. Griffin, is squarely contradictory. The plaintiff said that he did make such warranty; he denied emphatically that he made any such warranty. Then, therefore, the testimony on that point is directly conflicting."

Thereafter counsel for the plaintiff, in his reply argument, said to the jury: "We were trying to find out whether, before we put these in the shoes, whether they could be made. And so these gentlemen who are in the business of tanning leather, who could not make this leather. Well, what of it? That had nothing to do with this case. We tried to find them; we could not find them until the John R. Evans Company came and said, `We have a special process of waterproofing so...

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