211 P. 325 | Mont. | 1922
delivered the opinion of the court.
This is an action for damages for breach of warranty on the sale of an automobile truck. Upon issue joined, the case was tried to a jury, and resulted in a verdict and judgment for the plaintiff in the sum of $1,950.58. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.
Beeovery was sought of the purchase price paid for the autotruck, $1,950, and also special damages alleged as follows: The cost of a steel body purchased for the truck of the reasonable value of $100; plus loading and freight charges thereon from Great Nalls to Butte, amounting to $22.71; together with $177.87, the cost of installing such body; also $114.50 for putting a cab on °the truck; $45.43 for insurance; and $15 for a state license thereon and, further, $125 to cover expenditures made to replace two broken front wheels; $55 paid a mechanic to replace a broken spring and in getting
It is evident that the jury, in arriving at their verdict, found the value of the truck, with the body placed thereon, to be the sum of $200, deducted the same from the amount paid by the plaintiff, $1,950,. and added the special items of damages remaining and submitted, $22.71 freight charges on the body, $177.87 for installation thereof, thus totaling $1,950.58, the amount of the verdict.
Though several alleged errors are assigned, upon which a reversal is sought, in our opinion there are but two questions determinative of the appeal, namely: (1) Did the transaction constitute a sale and breach of wai’ranty, or was it one of agency exclusively? And (2) Were the items of special damages properly submitted to the jury?
The allegations of the complaint are amply supported by the evidence, save as to two items of special damages alleged, viz., $45.43 for insurance and $15 for a state license, totaling $60.43. The jury were properly instructed to ignore these
Continuing, the witness testified: “I had no further conference with Mr. Reed until he advised me the truck had arrived; that was the latter part of May, 1919. * * * A day or two later I went down and saw Mr. Reed, and he took me back into the barn there, where it was rather dark, or garage. * * * Mr. Reed showed me this chassis and said that that was the one he had purchased in the east, and I looked at it. I didn’t know anything about motor-trucks; I had no experience with them, and relied from the start upon his statement that he could secure one in first-class condition, and would do so, to answer the purpose, and this was a two-ton White truck. I asked him if it was in first-class condition and a two-ton truck; he stated it was, and he would guarantee it would answer the purpose, and in first-class condition; and so I requested him to take the chassis, that I didn’t know anything about driving it, down to the Montana Iron Works, and put on the steel body that I had purchased from the city of Great Falls; and he had someone take the chassis down. I had no further conversation with Mr. Reed at the time this truck was being delivered to me, only that he stated that it was in first-class condition. He stated his mechanic had gone over the truck and oiled it up, so as to be sure there was plenty of grease in it, and to see that it was in the condition it should be, and he stated it was in first-class condition; he would guarantee it would answer our purpose in every way. * * '* I purchased the steel body; we paid $100 for the body, $6 for loading charges, $16.71
On cross-examination he testified: “I spoke to Mr. Reed, told him we were in the market—the Butte Floral Company was—for a two-ton White truck chassis, and Mr. Reed didn’t have any, he stated, but he was going east and was going to buy some second-hand cars, and he felt sure that he could purchase one that would answer the purpose. I told him what we wished it for, we wanted to use it for hauling coal and soil and fertilizer, and in connection with the greenhouse work, and that I had in mind a body, a steel body, in Great Falls, which the city desired to sell at quite a reasonable
Mr. George N. Thurston testified that he was an experienced truck driver, and was the driver of this truck for the Butte Floral Company. He made a trip to Deer Lodge and return with the unloaded truck and had trouble getting there and back; also had trouble in loading a car of fertilizer there; the truck would not handle more than 500 or 600 pounds at a load. He unloaded a car of fertilizer at Butte with the truck and two teams. He hauled about ten loads with the truck, of 500 or 600 pounds to the load, and had to finish with teams. He had trouble with the clutch, the wheels, the
Clarence S. Woolfolk, as a witness for the plaintiff testified: “I am a machinist. I have been such about sixteen or seventeen years. I have lived in Butte three years. I worked for the White Company and their branches for about twelve years. I worked at the Portland house. I was traveling on the road for the White Company through the Northwest territory about five years, and traveled out of San Francisco for. about four years; worked as a local in the shop, and all through the whole state of California, through the Yosemite Talley. I am shop foreman of the Butte Motor Truck Company. While I was working for the White Company I was traveling machinist and inspector for that company. I have seen a certain truck which it is claimed Mr. Reed sold to the Butte Floral Company. Mr. King came in for somebody to inspect it, and I went out on the local service job of inspecting, and that was the truck I found out at the Butte Floral. * * * The front wheel bearings were all very loose; the spindles were very loose, worn on the spindles, worn in the housing, that is, the wheel housing, flange broken; the steering gear from one end to the other was all loose, practically worn out; the cylinders were cracked; the valves were loose and worn out; the timing gear was loose; the cam shaft was worn out, also the valve lift, rolls and pins; the engine loose in the frame; carburetor worn out; the clutch in bad shape; the transmission, fulcrum and all shift arrangement loose and worn; universal joint worn out; drive shaft broken; differential loose on rear axle housing; requires oversized studs; wheels loose on spindles, rear wheels, that is; all brake rigging loose and worn out on axle housing; brake studs out in housing; rear wheels loose on rear axles; all
Charles Deacon a witness for the plaintiff, testified: “I am a machinist; I have been such fourteen years. I have had eight years’ experience as a machinist in repairing and overhauling White trucks. * * * I was in the. employ of Sherman & Reed during the months of April and May and June, 1919. I have seen the truck which it is claimed Mr. Reed, the defendant in this action, sold to the Butte Floral Company. I first saw it at the Milwaukee depot. Mr. Reed, the defendant, sent me down, and I unloaded the car; it was in the box-car at that time. After I unloaded it I brought it out on the platform for one of the other boys to bring up to
Joe Mikel, a witness for the plaintiff, also testified that he had examined the truck. He said it was worn out in nearly all its parts, and corroborated the testimony of Woolfolk and Deacon. This evidence constituted plaintiff’s case.
In defense Mr. Reed testified that he thought it was understood that the price of $1,950 for the truck was f. o. b. Butte; that, as to the items which went to make up this sum,
That there was a sale and warranty is clearly established by the evidence. A sale “is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property” (sec. 7581, Rev. Codes 1921), and “a warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction whether past, present, or future” (sec. 7606), and “an agent is one who represents another, called the principal, in dealings with third persons” (sec. 7928). An agent has such authority only as the principal confers upon him (sec. 7945), and whether the transaction was a sale, a sale with warranty, or one of agency must be established or disproved by the facts taken as a whole (2 C. J., p. 423). “One who sells or agrees to sell personal property, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer’s inducement to buy.” (Sec. 7610, Rev. Codes 1921.)
The primary test as to the character of the contract is the intention of the parties gathered from the whole scope and effect of the language employed. (23 R. C. L., p. 1216.)
From the facts recited there is, in our opinion, no doubt as to the proper classification of the transaction. It was a sale with warranty, and bears none of the indicia of agency.
As to the items of special damages, we think those sub- mitted to the jury were properly recoverable under the allegations of the complaint and the evidence. Special damages are those which are the natural, but not the necessary, result of the injury (O’Brien v. Quinn, 35 Mont. 441, 90 Pac. 166; Gordon v. Northern Pac. R. Co., 39 Mont. 571. 18 Ann. Cas. 583, 104 Pac. 679), and in this case we think the items of special damages submitted to the jury were naturally resultant in consequence of defendant’s breach of warranty. They were the direct consequence of defendant’s breach of warranty, and were properly recoverable. (Luitweiler Pumping Engine Co. v. Ukiah Water & Imp. Co., 16 Cal. App. 198, 116 Pac. 707, 712; Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 187 Pac. 319; Mine Supply Co. v. Columbia Mining Co., 48 Or. 391, 86 Pac. 789; Mechem on Sales, sec. 1757; 35 Cyc., p. 472.)
The right of recovery of special damages is subject-to two conditions or limitations: (1) The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, such as might naturally be expected to follow a breach; and (2) they must be certain, both in their nature and in respect to the cause from which they proceed. (24 R. C. L., p. 76.) The detriment caused by the breach of warranty as to the
“When the seller of personal property has breached his express warranty to furnish an article of a specified kind, quality, or condition, he is liable, as in the case of any other kind of contract, for both general and special damages.” (Feeney & Bremer Co. v. Stone, 89 Or. 360, 369, 171 Pac. 569, 572; Parsons v. Smith, 51 Okl. 495, 151 Pac. 862; Mechem on Sales, secs. 1817-1821; 35 Cyc., pp. 451, 465.)
As said by Mr. Justice Farr, speaking for this court in the recent decision in the case of Rickards v. Aultman & Taylor Machinery Co., supra: “Special damages, that is, those damages which actually and naturally result from the action of the defendant, but are not such a necessary result that they will be implied by law, must be specially pleaded in order to be recovered”—citing cases. Here the plaintiff properly pleaded such special damages, and the proof amply warranted their recovery. Relying on the warranty, and in an effort to use the truck for the purposes intended, in good faith, plaintiff made expenditures which he is justly entitled to recover as special damages.
The judgment and order are affirmed.
Affirmed.