W. H. Bintz Co. v. Mueggler
| Decision Date | 13 December 1944 |
| Docket Number | 7154 |
| Citation | 154 P.2d 513,65 Idaho 760 |
| Parties | W. H. BINTZ COMPANY, a corporation, Appellant, v. PAUL MUEGGLER, doing business under the firm name and style of CITY BAKERY, Respondent |
| Court | Idaho Supreme Court |
Rehearing Denied January 9, 1945
In action to recover possession of bread-wrapping machine, sold by plaintiff to defendant under conditional sale contract, damages for breach thereof, and such other general relief as court deemed proper, defendant had right to set up defense of, and cross-complaint for, breach of warranty under Uniform Sales Law as against contention that breach of covenant of warranty in conditional sale contract cannot be set up as defense or by cross-complaint in replevin or claim and delivery action. (I. C. A., sec. 62-507.)
It was unnecessary for purchaser of bread-wrapping machine to give seller notice of defects therein or failure thereof to do work for which it was purchased, where seller's agent, who installed machine, had notice of and attempted to remedy defects.
Breach of warranty in conditional sale contract, as to number of loaves of bread which bread-wrapping machine covered by contract would wrap per hour, was equivalent of partial failure of consideration.
A purchaser of bread-wrapping machine was entitled to recover from seller damages sustained because of seller's breach of warranty as to number of loaves of bread which machine would wrap per hour from time of installation thereof until purchaser's installation of new bread pans, which seller's agent advised purchaser would rectify faults in machine, but not for damage sustained during period for which purchaser continued to operate machine after installation of such pans, which failed to remedy defects.
Rehearing Denied January 9, 1945.
Appeal from the District Court of the Seventh Judicial District, for Canyon County. Hon. Thomas E. Buckner, Judge.
Modified and cause remanded with instructions.
Frank F. Kibler and Creed W. Mullins for appellant.
Breach of warranty is no defense in an action in claim and delivery. Any claims purchaser may have against the seller must be asserted in an independent proceeding. (Sec. 62-507, I. C. A. (1932); 47 Am. Jur. 96, par. 888; Kemmerer v. Pollard, 15 Ida. 34, 96 P. 206; Murphy v. Russell, 8 Ida. 133, 67 P. 421; First National Bank v. Steers, 9 Ida. 519, 75 P. 225; Whitson v. Pacific etc. Motor Co., 37 Ida. 204, 215 P. 846.)
Cross complaints and counterclaims for unliquidated damages are not permissible in claim and delivery actions. The issue is limited to the right of possession, and the defense is limited to matters tending to defeat right of possession. (Blackfoot Stock Co. v. Delamur, 3 Ida. 291, 29 P. 97; Lovesohn v. Ward, 45 Cal. 8; Glide v. Kayser, 76 P. 50 (Cal.); Hunter v. Porter, 10 Ida. 72, 77 P. 434 (); Kemmerer v. Pollard, 15 Ida. 34, 96 P. 206.)
The bread machine involved in this case was used in the defendant's bakery for approximately two and one-half years. The defendant had a definite and well understood legal duty to minimize damages. "He is bound to protect himself if he can do so with reasonable exertion and trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided."
F. W. Jarvis and Geo. H. van de Steeg for respondent.
Under the conditional sale contract alleged, the breach of warranty, if found to exist, is a proper defense to defeat appellant's right to repossession of the machine in this state.
(a) because it would be a counterclaim against the price and is expressly allowed under our statutes Re: pleading. (I. C. A., 5-612, 5-613, 5-614; U. S. Hoffman Mach. Co. v. Ebenstein, 96 P.2d 661, aff., on rehearing in 103 P.2d 788; 48 A. L. R. 969 note at 973; 130 A. L. R. 753 note at 757 to 760; McCarger v. Wiley, 229 P. 665, (Ore.); Titan Truck Co. v. Richardson , 210 P. 790 (Wash.)
(b) Under the provisions of the Uniform Sales law where there is a breach of warranty by the seller, the buyer may at his election "accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price." (I. C. A., 62-507 (1) (a); Capitol Refrigerator Co. v. Schmidt, 200 A. 552 aff. in 3 A.2d 603; Peuser v. Marsh, 113 N.E. 494 (N. Y.) Ann. Cas. 1918B at p. 913.
The provision in the contract requiring respondent to give the appellant notice if the machine did not operate efficiently within 30 days is a provision for the benefit of the appellant, which he may waive, and which under the evidence in this case he did waive by his conduct. (Harrison v. Russell & Co., 12 Ida. 624, 87 P. 784.)
This is an action for recovery of possession of a bread-wrapping machine sold by appellant to respondent under a written contract of purchase and sale, and for damages.
About June 21, 1938, appellant, a Utah corporation, entered into a conditional sale contract with respondent, doing business in Caldwell under the firm name of Mueggler City Bakery, for shipment to respondent of the following described property:
The bread-wrapping machine was delivered by appellant to respondent about August 15, '38; when delivered, it was understood and agreed "that one man could wrap 720 loaves of bread per hour; that said machine failed to wrap 720 loaves of bread . . . . that it required the labor of two men to wrap 400 loaves per hour; that the machine did not efficiently perform the work at time of its installation; that plaintiff had immediate notice thereof through actual knowledge of its agents who personally operated the machine."
Appellant was requested by respondent to take back the machine and return to him the old machine delivered to appellant as a trade-in in part payment of the new machine, all of which was refused by appellant.
The cause was tried to the court without a jury. The court denied plaintiff's prayer for immediate possession of the property. Judgment was awarded respondent for damages in the sum of $ 554.05 and for costs of suit. It was also decreed that respondent "be and he hereby is entitled to retain the possession of the personal property described in the complaint and the answer, to-wit: . . . . together with the appliances thereunto belonging, until such time as the plaintiff returns to the defendant the trade-in machine, [describing it] and repays the defendant the sum of $ 150.00 paid to plaintiff upon the purchase price of the first aforesaid machine, and pays to defendant the amount of the judgment aforesaid for damages, i. e., the sum of $ 554.05, and that upon returning said machine to defendant and making the said payments, the plaintiff is then adjudged and decreed entitled to the possession of said machine; and it is further ordered, adjudged and decreed that the defendant, at his election, is entitled to permanent possession and full ownership of said machine upon paying to plaintiff the difference between the unpaid balance of the purchase price, i. e., $ 873.60, hereinabove awarded the defendant, including the cost."
From the whole of such judgment, plaintiff has appealed.
Respective counsel have furnished us with very exhaustive briefs on various questions relating to conditional sales of personal property. Appellant's specifications of error cover numerous phases of the case that could possibly arise. However, we deem it necessary only to consider the contention made by appellant, that the affirmative defense and cross-complaint pleaded by the defendant and the evidence introduced in support thereof should not have been allowed, for the reason, as appellant contends, that breach of covenant of warranty in conditional sale contract can not be set up as a defense or cross-complaint in an action in replevin, or claim and delivery as designated in our statute. (Hunter v. Porter, a possessory action involving a lease of real property, 10 Ida. 72, 77 P. 434; Cunningham v. Stoner, 10 Ida. 549, 557, 79 P. 228; Harrison v. Russell & Co., 12 Ida. 624, 87 P. 784.)
It is true that, prior to the adoption of the Uniform Sales Law, it was held that breaches of covenant contained in a contract of sale could not be set up as a defense or by way of recoupment in a replevin action for the possession of the property sold. Since the decision of the cases above cited and, in 1919, the legislature enacted what is known as the "Uniform Sales Law." (Sec. 62-609, I. C. A.; 1919 Sess. Laws, chap. 149, p. 443.) Sec. 69 of the original act is now embodied in sec. 62-507, I. C. A., and, among other things, provides as follows:
To continue reading
Request your trial
-
Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 11637
...River Paper Co. v. Lindsay, 144 N.E. 224 (Mass.1924); Annot., 53 A.L.R.2d 270 (1957). Salmon Rivers relies upon W. H. Bintz Co. v. Mueggler, 65 Idaho 760, 154 P.2d 513 (1944), to absolve it of the need to give Boise Aviation notice of the defect because the latter repaired the aircraft and ......
-
Wickahoney Sheep Company v. Sewell
...usual case is to give the party allegedly in default an opportunity to remedy the default and meet his obligator, Bintz Company v. Mueggler, 1944, 65 Idaho 760, 154 P.2d 513, and notice in the prescribed manner is not required where a party has actual notice and has not suffered prejudice. ......
-
Nelson v. Anderson, s. 36590
...see Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199; Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309.3 W. H. Bintz Co. v. Mueggler, 65 Idaho 760, 154 P.2d 513; Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P.2d 964; Finks v. Viking Refrigerators, Inc., 235 Mo.App. 67......
-
Pioneer Engineering Works v. McConnell, 8791
...passed. See annotations in 48 A.L.R. 969, 973 and 130 A.L.R. 753, 756, and McCargar v. Wiley, 112 Or. 215, 229 P. 665; Bintz Co. v. Mueggler, 65 Idaho 760, 154 P.2d 513. The defendant then had a right to rely upon the warranty set out in Exhibit A. He had a right to introduce evidence to pr......