Whitaker v. Cannon Mills Co.
| Decision Date | 05 December 1945 |
| Citation | 45 A.2d 120,132 Conn. 434 |
| Court | Connecticut Supreme Court |
| Parties | WHITAKER et al. v. CANNON MILLS CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Fairfield Couty; Cornell, Judge.
Action by Elsie B. Whitaker and others, executors of the estate of Howard Whitaker, deceased, against Cannon Mills Company and others to recover damages for breach of warranty of merchantable quality of cloth sold to plaintiffs' intestate, tried to the court. From an adverse judgment, named defendant appeals. Error and case remanded with direction to enter judgment for defendant.
Plaintiffs filed a motion for reargument which was granted.
Hugh M. Alcorn, of Hartford, for appellant.
Wallace W. Brown, of Hartford, for appellees.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
The original plaintiff died before this case was finally disposed of in the trial court, and the present plaintiffs, executors of the estate, were substituted. We shall use the word ‘plaintiff’ to refer to the original plaintiff. He was a tobacco grower and bought of the defendant, a manufacturer of cotton goods, cloth known as tobacco cloth, used in growing shade-grown tobacco. The cloth was torn apart by a hailstorm while in use as a ‘tent’ over the plaintiff's tobacco corp. The plaintiff brought this action to the Superior Court in Hartford County for breach of warranty and negligence, claiming damages for injury to the tobacco cloth and his crops. Hearings were had in December, 1940, but no decision was rendered in that term of court. In the following term, the trial judge obtained consent of the parties to render judgment. He filed a memorandum on November 25, 1941, in which he stated that he found the issues for the defendant except as to the claim of breach of a warranty of merchantability, and found that the defendant had breached this warranty but that the plaintiff had failed to allege proper notice to the defendant of such a breach; that further evidence of such notice was necessary; and that no judgment could be rendered at that time. He gave the plaintiff leave to amend his complaint, the defendant leave to answer, and both parties leave to offer further evidence in connection with the amendments. The pleadings were amended and a further hearing was had on December 13, 1941. On February 14, 1942, the trial judge filed a second memorandum in which he stated that he found that notice of breach of warranty had been given in a reasonable time but not in accordance with the statutes, and that further amendments would have to be made in respect to the question of damages. He gave the plaintiff further leave to amend and stated that, in case the parties could not stipulate as to the facts, a further hearing would be necessary. The defendant objected to any further amendment and hearing. The plaintiff filed a further amendment to the complaint and another hearing was held on May 23, 1942, at which time the court gave the defendant an opportunity to offer evidence on the question of damages, which it declined to do. On July 9, 1942, judgment was rendered for the plaintiff for the price of the cloth less its salvage value. The defendant has appealed on two main grounds: (1) that the trial court had lost jurisdiction to render judgment in the case under General Statutes, § 5409; (2) that there could be no recovery on the ground on which the judgment was based-implied warranty of merchantability.
The facts necessary to present the narrow issues upon which we decide the case are as follows: The plaintiff had been a tobacco farmer in Somers, Connecticut, for many years and, since 1920, had purchased his requirements of tobacco cloth from the defendant. The defendant was a cotton manufacturer located in North Carolina and manufactured and sold tobacco cloth for use in growing shadegrown tobacco. The cloth forms a tent over the growing tobacco plants for the purpose of producing conditions of heat and humidity similar to those prevailing in Cuba and of protecting the crop from wind, hail, rain and insects. In October, 1937, through a subsidiary corporation, the plaintiff purchased the cloth from the defendant on an order which specified two hundred thousand square yards of ‘Cannon Tobacco Cloth Style 88X’ and which recited that the cloth was bought ‘As per sample submitted’ and that ‘This order is subject to the conditions printed on the reverse side of this sheet.’ Among the conditions so printed was one which provided as follows:
No sample was submitted with the order and the plaintiff neither asked nor was given any express warranty of quality, fitness or otherwise by the defendant. On or about December 17, 1937, the defendant delivered the cloth to the plaintiff, and the plaintiff later paid for it in full. It came in thirty-six bales, each about three by three by four feet in size, covered with burlap and bound with iron strips. The plaintiff stored the bales, without examination, in a tobacco shed, where they remained until May of the following year. The cloth was then unpacked and spread on the tent frames, together with a small quantity bought for the previous season, and to remained until, on July 15, 1938, it was damaged by a wind-, hail-, and rainstorm. No complaint was made about the cloth until after this storm. The defendant claimed that the condition we have quoted from the contract was a bar to any right to recover. The trial court held that, as a basis for a claim for damages, there was a warranty of merchantability, to the breach of which the condition did not apply.
The jurisdictional question must first be considered. The claim of the defendant is that the trial of the case was...
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Remax Right Choice v. Aryeh, 26571.
...is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. George A. Douglas & Bro., Inc., 121 Conn. 377, 380, 185 A. 70 (1936). We have characterized a late ju......
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...of the job evaluation appeal procedure, and it was not for the court to import another and different final step. Whitaker v. Cannon Mills Co., 132 Conn. 434, 440, 45 A.2d 120; Straus v. Kazemekas, 100 Conn. 581, 593, 124 A. 234. Courts of law must allow parties to make their own contracts. ......
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...agreement, because of the unreasonableness of its terms, be changed to vary the express limitation of its terms. Whitaker v. Cannon Mills Co., 132 Conn. 434, 440, 45 A.2d 120. 'We assume no right to add a new term to a contract, though it were clear that had the attention of the parties bee......
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...implication, invoking the jurisdiction of the court to render judgment at such term. See the Connecticut case of Whitaker v. Cannon Mills Co., 132 Conn. 434, 45 A.2d 120, 122, explaining that under the statute there involved, which is quite similar to our Rule 330(j), lack of jurisdiction t......