428 N.E.2d 438 | Ohio Ct. App. | 1980
Defendant-appellant, Devore Trucking, Inc., appeals a judgment of $4,659.80 for breach of express and implied warranties and lost wages. We affirm.
Defendant sells used trucks. On September 15, 1976, plaintiffs-appellees, Lawrence Morrison and Robert Bormann, d.b.a. Elmhurst Trucking Company, purchased a 1973 International tractor from defendant to haul freight long distance. The only writing incident to the sale was an invoice which contained the price, a description of the truck, a major power train guarantee, the signatures of the plaintiffs and the initials of an agent for defendant.
While preparing the tractor for their first trip, plaintiffs discovered serious brake difficulties, which defendant repaired free of charge. A few days later the blower malfunctioned and defendant reimbursed plaintiffs for those repairs. After 11,000 miles of use, the tractor suffered two broken pistons. Defendant was unable to service the truck at that time and plaintiffs had the work done elsewhere. Plaintiffs contend that this work was done with the understanding that defendant would pay for the repairs. Defendant denies this. Judgment was granted to plaintiffs on the theories of breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, and estoppel based on the promise to pay for the repairs.
The trial court based its decision in part upon three warranty theories. Defendant does not argue that the damages granted are inappropriate under those warranties or that the facts fail to support their breach. Rather, defendant contends that the warranties upon which the trial court based its decision were excluded by the parties. Defendant argues that the warranty on the invoice embodies the entire agreement of the parties and limits defendant's liability to the provisions in the writing. Because there is a writing, defendant argues that the Statute of Frauds and the parol evidence rule prevent proof of *142 any other warranties or agreements. The trial court found that the invoice did not constitute a written agreement between the parties, and posed no bar to proof of the other warranties.
First, we find that the invoice, initialled by an agent of defendant and signed by plaintiffs, is sufficient writing to satisfy the Statute of Frauds. R. C.
"This unit sold with the Major Power Train components guaranteed on a 50-50 Basis for a period of 30 days or 5,000 miles (our shop only)."
Plaintiffs argue that this warranty is in addition to an oral express warranty that the truck could be driven 200,000 miles without a major overhaul. We disagree. The written warranty, as set forth in the invoice, was intended by the parties to be a final expression of their agreement with respect to the terms of the express warranty for the major power train of the truck. R. C.
Defendant argues that this express warranty, once established, limits the implied warranties of merchantability (R. C.
"Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose."
The argument is without merit. By its terms, R. C.
Ben Johnson, co-owner of defendant, admitted his awareness *143 of the particular purpose for which the vehicle was to be used by plaintiffs as well as their reliance on his expertise. Defendant is a merchant. Therefore, both warranties of fitness and merchantability are applicable to defendant, and the invoice operated to exclude neither. No other evidence that the warranties were excluded by the parties is offered. The trial court did not err in proceeding to make a factual determination regarding breach of these warranties by defendant.
Defendant raises two arguments on this issue, failure of consideration and failure of proof of modification. Subsequent acts and agreements may modify the terms of a contract, and, unless otherwise specified, neither consideration nor a writing is necessary. R. C.
"The trial court erred in granting Judgment in the amount of $4,659.80 because said amount is in excess of the demand in the Complaint which was for only $3,191.94."
Plaintiffs' complaint states, in part:
"* * * plaintiffs have been damaged in the amount of $3,191.94, plus reasonable, incidental and consequential damages for compensation for the period during which the vehicle was inoperable; * * *"
Plaintiffs requested "* * * judgment in the amount of $3,191.94, or such other amounts as they may prove to be a *144 direct and proximate loss of wages resultant from defendant's conduct, * * *."
In Assignments of Error Nos. III and IV, defendant argues that this language is insufficient to set forth special damages above and beyond the $3,191.94 repair amount prayed for. Civ. R. 9(G) provides:
"When items of special damage are claimed, they shall be specifically stated."
Loss of earnings is an item of special damages which must be specifically stated pursuant to Civ. R. 9(G). The purpose of this rule is to avoid surprise and alert opposing counsel to the type of evidence which will be introduced.
"* * * Those rules [the Federal Rules of Civil Procedure] liberalize the requirements of pleading so that an allegation of special damages is sufficient when it notifies the defendant of the nature of the claimed damages even though it does not delineate them with `as great precision as might be possible or desirable.' * * *." Continental Nut Co. v. Robert L. Berner Co.
(C.A. 7, 1965),
The amount of special damages need not be specifically pleaded. United Ins. Co. v. B. W. Rudy, Inc. (E.D. Pa. 1967),
Judgment affirmed.
BELL, P. J., and MAHONEY, J., concur. *145