William F. Wilke, Inc. v. Cummins Diesel Engines, Inc.

• Decision Date: 10 March 1969
• Docket Number: No. 130,130
• Citation: 250 A.2d 886,252 Md. 611
• Parties: , 6 UCC Rep.Serv. 45 WILLIAM F. WILKE, INC. v. CUMMINS DIESEL ENGINES, INC.
• Court: Maryland Court of Appeals

Page 611

252 Md. 611

250 A.2d 886, 6 UCC Rep.Serv. 45

WILLIAM F. WILKE, INC. v. CUMMINS DIESEL ENGINES, INC.

No. 130.

Court of Appeals of Maryland.

March 10, 1969.

Donald N. Rothman and Robert E. Sharkey, Baltimore (Allan J. Malester and Gordon, Feinblatt & Rothman, Baltimore, on the brief), for appellant.

Clarke Murphy, Jr., Baltimore (White, Page & Lentz, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SINGLEY, JJ.

SINGLEY, Judge.

The dilemma which this controversy posed for the trial court was aptly put by Alexander Pope more than two centuries ago: 'Be not the first by whom the new are try'd, Nor yet the last to lay the old aside.' ¹ A resolution of the problem calls for a deep draft from Pope's Pierian spring. ²

William F. Wilke, Inc. (Wilke), the appellant here and plaintiff below, is a mechanical contractor who was a subcontractor on a job involving the construction of certain facilities for the United States government at Aberdeen Proving Ground. The performance of the contract required, among other things, that Wilke supply and install an emergency diesel-powered generator in conformance with government specifications. After a discussion with representatives of Cummins Diesel Engines, Inc. (Cummins), the appellee here and defendant below, Wilke received a quotation from them dated 14 July 1965. On 3 August 1965, Wilke issued a purchase order for an emergency diesel generator 'in strict compliance with plans and specifications * * * complete in all respects, including all required tests for the sum of Thirteen Thousand Three Hundred Dollars ($13,300). ³ This price includes all requirements as set forth in paragraph 39.22 (the portion of the government specifications which dealt with the emergency diesel generator) except subparagraphs k and l' (which dealt with the fuel oil storage tank, the cleaning and painting of such tanks, and oil pipe and fittings). (Emphasis added)

The job progressed with agonizing slowness, and by August 1966 was only 50% complete. Although it was far too early to install the generator, Cummins was anxious to deliver it to the job site and did so on 17 August 1966. It was delivered by Cummins' truck, unloaded by Wilke's crane and placed on a permanent base which had been prepared for it. At the time of delivery, the generator was lacking two starting batteries. When asked how Cummins' representative explained the absence of the batteries, Wilke's foreman at the job answered: 'He said the batteries were not in the machine because he did not want us to start it or fool with it. His statement was, 'This is my baby until I start it and turn it over to you." This testimony was not challenged by Cummins. Also missing were the maintenance and operating instruction manuals that were included in the specifications.

On 18 August 1966, Cummins billed Wilke for $13,500, and on 27 September, Wilke sent Cummins a check for $13,300, telling them that the remaining $200 would be paid after start-up and field tests.

The job continued to move at a snail's pace, and until the spring of 1967 the generator sat on its base enclosed in a housing intended to protect it from the weather since it was designed to operate out of doors. When Wilke started to hook up the generator it was discovered that the water in its cooling system had frozen during the previous winter, and that the engine had been severely damaged.

Wilke notified Cummins of the damage, and Cummins, after an investigation, decided that repairs could not be made on the job site. The generator was picked up by Cummins and taken away to be repaired. There were no discussions between the parties as to the responsibility for the repairs prior to their completion. On 9 June, Cummins sent Wilke a bill for $2,231.20 for the work and conditioned return of the generator on the payment of the bill. On 19 June, Wilke instituted an action of replevin, and on that same day, Cummins sent Wilke a corrected bill in the amount of $2,798.27. The generator was returned to the job site where Cummins supervised the electrical installation, start-up and field tests. In April of 1968, the replevin action was tried without a jury by the Superior Court of Baltimore City which, on 8 April 1968, entered judgment absolute in favor of Cummins for the return of the property or, alternatively, for $2,798.27, one cent damages and costs. It is from this judgment that Wilke has appealed.

The court below concluded that 'title did pass at the time of delivery of the machine; and that the tests which were to be made thereafter were not a condition to the passing of title' and that 'the implication is that when someone in this kind of business (Cummins) is told that it is necessary that (the generator) be put into operation; these circumstances justify Cummins' conclusion that they have an implied order to repair * * * (which) carries with it the responsibility of payment for the repairs before the machine can be released from the custody of the repairman.'

Wilke contends that this result and the reasons given in support of it could possibly have been a correct statement of the law under the Uniform Sales Act (the Sales Act), ⁴ which was repealed in Maryland by Chapter 538 of the Laws of 1963, but is at 'cross purposes' with the Uniform Commercial Code (U. C. C.), Maryland Code (1957, 1964 Repl.Vol.) Art. 95B, §§ 1-101 ff, which has been in force in Maryland since 1 February 1964. Since we agree with this, we need not reach Wilke's allegation that the damage was caused by Cummins' negligence, or Cummins' contention that Wilke was responsible for the care of the generator and for the cost of repairs.

One of the more startling differences between the U. C. C. and the Sales Act is the U. C. C.'s adoption of a flexible contractual approach instead of following the more rigid concept of title to which the Sales Act adhered. Girard Trust Corn Exchange Bank v. Warren Lepley Ford, Inc., 12 Pa.Dist. & Co. R.2d 351 (1957); Uniform Commercial Code Section; The Passage of Title, Carrington, 14 Wyo.L.J. 17, 25 (1959); The Law of Sales in the Proposed Uniform Commercial Code, Williston, 63 Harv.L.Rev. 562, 581 (1960); The Status of the Concept of Title in Article II of the Uniform Commercial Code, 37 St. John's L.Rev. 178 (1962). See also, Silver v. Sloop Silver Cloud, 259 F.Supp. 187 (D.S.D.N.Y.1966).

The Official Comment to U. C. C. § 2-101, the first section in the Subtitle on Sales, puts it this way:

'The arrangement of the present Subtitle is in terms of contract for sale and the various steps of its performance. The legal consequences are stated as following directly from the contract and action taken under it without resorting to the idea of when property or title passed or was to pass as being the determining factor. The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something, the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.' (Emphasis added)

Hawkland, A Transactional Guide to the Uniform Commercial Code (1964), goes somewhat further:

'Under the U. C. C. the location of title is relatively unimportant, because the Code rejects the 'lump-concept approach' of the common law and U. S. A. (Uniform Sales Act). At common law and under the U. S. A. the approach was to decide under the specific facts of a case that the 'title' was in the seller or the buyer, a 'wide-premise decision,'...