90 W. Va. 428 | W. Va. | 1922
The plaintiff instituted this suit to recover the balance claimed upon an account for goods sold and delivered by it to the defendant, the jurisdiction in equity being sustained by an attachment sued out upon the ground that the defendant is a non-resident of the State of West Virginia. The right to recover was denied and upon a hearing the Court below found in favor of the defendant and dismissed the plaintiff’s bill, and it is to reverse this decree that this appeal is prosecuted.
The only substantial controversy arises over the right of the plaintiff to recover the purchase- price of one ‘' Isko Re
The defendant challenged the right of the plaintiff to recover upon this state of facts, and in addition filed an answer in the nature of a cross-bill in which he claimed damages in the sum of one thousand dollars for injury to his refrigerator, for loss of food products on account of lack of refrigeration and for inconvenience experienced by him in his home because of the experiments conducted with the machine.
The plaintiff’s right to recover depends upon the application of a few familiar principles of the law of sales. There is contained in the written order and the acceptance thereof no express warranty that the machine purchased would be fit for any particular use or would accomplish any particular purpose. There was a verbal warranty made by the plaintiff prior to or contemporaneous with the writing that the device would furnish refrigeration and would produce small cubes of ice for domestic table use. The plaintiff’s agent admits this. Can we add this warranty to the written contract? If we can, the defendant’s right to prevail in this suit is clear for it is admitted that the machine does not and never did meet the terms of this warranty. There is some conflict among the authorities on this question. There are some holdings to the effect that a warranty is collateral to the principal contract and may be proven by parol evidence even though the contract of sale is in writing. The better reason, supported by the weight of authority, seems to be that a verbal express warranty cannot be added to a written contract of sale. Williston on Sales, sec. 215; 23 R. C. L., Title “Sales”, sec. 224. This is the doctrine adhered to by this Court. Erie City Iron Works v. Miller Supply Co., 68 W. Va. 519; American Canning Co. v. Flat Top Grocery Co., 68 W. Va. 698.
Being thus barred from considering the express verbal warranty we must ■ determine the rights of the parties upon the terms of the written contract. It is quite well established that where one buys an article of personal property by a particular description or of a designated kind, there is
That the machine furnished answered the description contained in the written contract so far as the name is concerned there is no doubt. Was it, however, an ordinary machine of that class ? Did it possess the attributes ordinarily belonging to a machine of that kind? If it did not then it did not meet the requirements of the contract. There is some evidence tending to show that the Isko Refrigerating machine will not perform the functions of refrigeration or of making ice. If this is true, then the fact that the device furnished "the defendant did not make ice is not evidence that it did not correspond with the description'contained in the written contract. The plaintiff, however, has introduced much evidence to establish as a fact that the Isko Machine when in proper order will produce adequate refrigeration and will make ice cubes, and as before stated, a representative of the manufacturer condemned the machine furnished the defendant because it was out of order. Of course the plaintiff, in fulfillment of its contract, could not furnish a machine answering the general dsecription, but so out of order or so lacking in workmanship, as not to perform any of the functions usually performed by machines of the general class to which it belongs. Such a machine would not be a merchantable one of that class. There is evidence in support of both contentions, but it seems to us that the preponderance of the evidence is to the effect that an ordinary Isko Machine will furnish refrigeration and make ice, and it being conceded
The plaintiff insists that the defendant’s conduct has been inconsistent with his contention that he rejected the machine, that it offered to take the machine hack and relieve him of any liability for its purchase price, which offer he refused. It is true, one of plaintiff’s agents testifies that he proposed to the defendant that he would take the machine back for the plaintiff and cancel the claim for the purchase price, but the defendant says that this was to be also a settlement of any claims he might have for damages against the plaintiff, and that he did refuse to accept such séttlement, but that he never refused to permit the plaintiff to reclaim the machine, but has been perfectly willing at all times and is still willing for it to take it and make any disposition it desires of it. The evidence of plaintiff’s witness upon this question is not inconsistent with defendant’s contention. He shows that he was trying to settle the controver-' sies between the parties and that defendant Was then claiming damages, and it would seem from all of the evidence that his proposition contemplated just what the defendant says it did. Of course the defendant could not be compelled to waive any claims for damages that he might have, under penalty of being chai’ged with conduct inconsistent with his rejection of the machine.
The plaintiff contends that it is entitled to recover in any event the sum of $9.50 being the price of an electric grill furnished the defendant. The defendant admits that he received this grill but says that he is under the impression that he returned it, and enforces this contention with the declaration that it did not appear on the statement of account sent him by. the plaintiff, all of the items of which he paid, except the one- covering the price of the Isko Machine. It is true when testifying he stated that he would ascertain definitely when he went home whether this grill had been returned, but there is no further showing in the record in regard to it. The plaintiff did not undertake to show that
The defendant cross-assigns as error the action of the Court in denying his claim for damages. He claims that his refrigerator was rendered practically worthless in attempting to install the machine in it, and that it was worth from $200 to $250; that he lost a considerable quantity of vegetables, milk and meat -for want of refrigeration; and that he was much inconvenienced by the failure of the machine to produce refrigeration. That the refrigerator was slightly injured, sufficiently appears, but it is also shown that the damage to it can be repairied for a very inconsiderable sum, the amount not being shown. Under the evidence he was not entitled to réeover as damages the full value of the refrigerator, but,- if entitled to recover at all on this account, only the difference in the value of the same before and after the injury to it. What this is does not sufficiently appear to form a basis for a recovery in his favor. The claims, for loss of food products are uncertain and indefinite. There is no showing of any actual loss on this account and the amount thereof. The inconvenience suffered is entirely too speculative and uncertain to form the basis of any recovery. The defendant’s evidence introduced in support of his claim for damages- entirely fails to establish any reasonably certain or definite basis for such recovery.
We find no error in the decree complained of and the same is affirmed.
Affirmed.