Welsh v. Ledyard, 35065

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; In the opinion by Hart; WEYGANDT
• Citation: 146 N.E.2d 299,167 Ohio St. 57
• Parties: , 4 O.O.2d 27 WELSH, Appellant, v. LEDYARD, d. b. a. Western Auto Store, Appellee.
• Docket Number: No. 35065,35065
• Decision Date: 27 November 1957

Page 57

167 Ohio St. 57 146 N.E.2d 299, 4 O.O.2d 27 WELSH, Appellant,
v.
LEDYARD, d. b. a. Western Auto Store, Appellee. No. 35065. Supreme Court of Ohio. Nov. 27, 1957.

Otto W. Hess and George A. Meekison, Napoleon, for appellant.

Ham & Ham, Wauseon, Effler, Eastman, Stichter & Smith, Doyle, Lewis & Warner and D. L. Sears, Toledo, for appellee.

PER CURIAM.

Plaintiff concedes that her action is not based upon negligence.

Plaintiff has argued that the evidence supports an inference that plaintiff's husband purchased the cooker as agent for plaintiff. There are obviously no allegations in plaintiff's petition which would support any such determination. Nor are there any allegations that would reasonably support a legal determination that, in making the purchase of the cooker, plaintiff's husband made a contract with defendant for the benefit of plaintiff, or, in other words, that plaintiff was a third party beneficiary of a contract made between her husband and defendant for her benefit. Therefore, we express no opinion as to whether plaintiff could recover from defendant for breach of warranty if there had been such allegations. Also, it is conceded that plaintiff's action is not one for deceit.

Plaintiff's petition is susceptible of an interpretation that there was an express warranty to plaintiff and not merely to her husband because, to use the words of the petition, 'defendant * * * warranted and held out to the general public, and more especially to * * * plaintiff, said appliance to be of sound construction, ready and capable of withstanding use for which it was designed.' However, there is no evidence in the record

Page 60

of any express warranty to plaintiff i. e. (to refer to the words of Section 1315.13, Revised Code, defining an express warranty), 'any affirmation of fact or any promise by' defendant made to or relied upon by the plaintiff. Hence, in order to prevail, upon the pleadings and the evidence in the instant case, plaintiff must rely upon some implied warranty.

In Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d 8, paragraph two of the syllabus reads:

'Although a subpurchaser of an inherently dangerous acticle may recover from its manufacturer for negligence, in the making and furnishing of the article, causing [146 N.E.2d 301] harm to the subpurchaser or his property from a latent defect therein, no action may be maintained against a manufacturer for injury, based upon implied warranty of fitness of...