Ewers v. Eisenzopf

276 N.W.2d 802, 88 Wis. 2d 482, 26 U.C.C. Rep. Serv. (West) 315, 1979 Wisc. LEXIS 1935

• Court: Wisconsin Supreme Court
• Decided: March 27, 1979
• Docket: 76-422
• Status: Published

Opinions

COFFEY, J.

The plaintiff-appellant appeals from a judgment dismissing his action against the owner of the Verona Rock Shop. The plaintiff brought the action seeking to recover damages for the death of 17 tropical fish in his salt water aquarium. The action was commenced in the small claims court of Dane county, County Judge Harry E. Larsen, presiding. The county court dismissed the case and made a finding that neither an express nor an implied warranty was created in the purchase of certain sea shells, coral and a driftwood branch from the rock shop. The judgment appealed to the circuit court for Dane county was affirmed by Circuit Judge Michael B. Torphy, presiding.

The plaintiff-appellant, an aquarium hobbiest, purchased a salt water aquarium and fish in June, 1975. The defendant-respondent, the proprietor of the Verona Rock Shop, sold an assortment of rocks, jewelry, lapidary supplies, novelties and sea shells. On August 10th of 1975, the plaintiff selected several sea shells, a piece of coral and a driftwood branch at the defendant’s shop for use in his aquarium. Before paying for the merchandise, Ewers’ friend asked the sales clerk if the items selected were “suitable for placement in a salt water aquarium.” The part time sales clerk with 3 years’ experience at the rock shop replied “They had come from salt water and that they were suitable for salt water aquariums, if they were rinsed.” The plaintiff purchased the items and returned to his home where he rinsed the shells, coral and branch for twenty minutes in a salt and tap water solution. Within one week after placing the shells, coral and branch in the tank, the plaintiff’s 17 fish died.

The plaintiff discussed this problem with Ed Duren who owns the hobby shop where the plaintiff had purchased the aquarium and fish. Duren, after inspecting the tank, found the water polluted. He testified that he removed several sea shells from the tank and upon examination found they emitted a toxic odor. Duren stated at trial it was his opinion that the fish died as a result of this toxic matter released into the water by the decay of the creatures inhabiting the shells and coral. Duren explained that the decaying matter can be removed from the shells and coral by a week-long cleansing process which consists of soaking the items in boiling water.

The trial court dismissed the small claims action on each ground of express and implied warranty. Regarding the implied warranty issue, the court stated:

“From my own personal knowledge and experiences in life, . . . there are literally thousands of shell and rock shops throughout the country from coast to coast. I cannot find that there is an implied warranty by a . . . shop . . . which does not hold itself out or advertise itself as catering to fish hobbiests, that all of their rocks and shells are suitable in aquariums for all types of fish_”

Dealing with the express warranty claim, the trial court said:

“. . . I cannot find that there was an express warranty in this case upon a fish hobbiest . . . asking a young clerk whether . . . shells . . . were suitable for use in a salt water aquarium and gave the reply that they were suitable if properly rinsed. I cannot find that that constitutes an express warranty that these . . . shells . . . were expressly warranted to be suitable for the type of fish and the type of aquarium this plaintiff had.”

The decision of the circuit court in affirming the trial court, notes the testimony of Mr. Duren stating that the shells should have been voided of decaying organic matter before being placed in the aquarium. The circuit court summarily affirmed the lower court’s opinion on the implied warranty issue and stated, in reference to an express warranty:

“. . . Neither the questions nor the answers to them are so clear and definite so as to constitute such a warranty.

“Suitability for usage in a salt water tank is not so concise as to promise suitability with any or all such fish and plants as might be placed in such a tank. (It might even be argued, however, that the answer to the question put was not in error for the method described by Duren for curing shells is little more than an extended rinsing or soaking.) ”

Issues:

1. Whether the seller’s statement that certain goods were “suitable for salt water aquariums, if they were rinsed” constitutes an express warranty under sec. 402.813, Stats.?

2. Whether there is an implied warranty: fitness for a particular purpose pursuant to sec. 402.315, Stats., when a seller is asked whether the items the buyer selected are “suitable for placement in a salt water aquarium?”

The Uniform Commercial Code’s provision relating to the creation of an express warranty in a sales transaction has been codified in sec. 402.313, Wis. Stats., in the following language:

“(1) Express warranties by the seller are created as follows:

“(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. it

“(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” (Emphasis supplied.)

It should be pointed out that although sec. 402.313 (2) does not require the magic words of “warrant” or “guarantee” to establish an express warranty, a buyer has the burden of proving the purchase was consummated on the basis of factual representations regarding the “title, character, quantity, quality, identity, or condition of the goods.” A. A. Baxter Corp. v. Colt Industries, Inc., 88 Cal. Rptr. 842, 847, 10 Cal. App.3d 144 (1970); See: Hagenbush v. Snap-On-Tools Corp. 339 F. Supp. 676, 680 (D.C.N.H. 1972).

In the present case, the circuit court found that an express warranty was not made as the plaintiff’s question and the sales clerk’s answer were not “so clear and definite so as to constitute a warranty.” However, sec. 402.313(1), Stats., does not require a warranty to be stated with any degree of preciseness, only that the seller’s statements are an affirmation of fact “that the goods shall conform to the affirmation or promise.” Sec. 402.313(1), Stats. Further, it has already been noted that “No technical or particular words need be used to constitute an express warranty, yet whatever words are used must substantially mean the seller promises or undertakes to insure that certain facts are, or shall be, as he represents them.” Naaf v. Griffitts, 201 Kan. 64, 439 P.2d 83, 85 (1968). In the case before us, the statement by the sales clerk that the shells, coral and branch were “suitable for salt water aquariums, if they were rinsed” is an affirmation of fact regarding the quality and condition of the goods sold.

The second element required to establish an express warranty is that the affirmation of fact pertaining to the goods being purchased must become “a basis of the bargain.” Sec. 402.313(1), Stats. The statutory language “a basis of the bargain” does not require the affirmation to be the sole basis for the sale, only that it is a factor in the purchase. The official Uniform Commercial Code Comments to §2-313 explains that the seller’s intent to establish a warranty and the buyer’s reliance on the affirmation are not determinative as to whether the representation is a basis of the bargain:

“No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.” See: Sessa v. Riegle, 427 F. Supp. 760 (E.D. Pa. 1977) and “Express Warranties and Greater Consumer Protection from Sales Talk” 50 Marq. L. Rev. 88 (1966).

In Pritchard v. Liggett & Myers Tobacco Co., C.A. 1965, 350 F.2d 479, cert. den. 86 S. Ct. 549, 382 U.S. 987, 15 L. Ed.2d 475, opinion amended 370 F.2d 95, cert. den. 87 S. Ct. 1350, 386 U.S. 1009, 18 L. Ed.2d 436, it was recognized that the seller’s intent and the buyer’s reliance were irrelevant to a determination of whether an express warranty had been made. The Court set forth a workable test for finding whether an express warranty has been created:

“The true test is not whether the seller actually intended to be bound by his statement but rather whether he made an affirmation of fact the natural tendency of which was to induce the sale and which did in fact induce it.” Id. at 487. (Emphasis supplied.)

In this appeal the plaintiff purchased the shells, coral and branch for use in his aquarium. Certainly, the sales clerk’s representations regarding the suitability of the goods induced Ewers to purchase the shells, coral and branch, for if these items were not suitable for the fish tank the plaintiff would not have consummated the transaction.

Additionally, we cannot agree with the circuit court that the curing or cleansing process detailed by Edward Duren to make the shells satisfactory for use is the same as the colloquial meaning of the word “rinsed.” Had the seller more thoroughly described the required cleansing process of submerging the items in boiling water for a period of a week, we would be reaching a different result and affirming the judgments of the lower courts. But in the instant case the goods did not and could not conform to the seller’s affirmation of suitability for their intended use, even though the plaintiff followed the seller’s vague directions regarding the cleansing process.

We hold the seller’s statements constituted an express warranty when the seller specifically stated the merchandise would be suitable for use in the aquarium after rinsing. Therefore, the buyer in this particular fact situation is entitled to recover as the terms of the warranty were not fulfilled. The fact that the defendant’s shop does not primarily cater to buyers of aquarium equipment and that the shop owner is relatively inexperienced in the field, does not relieve him of liability. In Cagney v. Cohn, 13 U.C.C. Rep 998 (D.C.S. Ct. 1973) the seller’s lack of experience in the field was held inconsequential to the determination of whether a warranty was made during the sale of a defective motorcycle, the court stating:

“The particular statements made during the sales negotiations and the surrounding circumstances of this sale have been carefully considered by the Court, since the defendant seller is neither a motorcycle expert nor a dealer. Nevertheless, such a lay status does not exempt the defendant from §2-313 of the Uniform Commercial Code.

“Section 2-313 addresses itself to assertions made by the seller which become part of the basis of the bargain. Paragraph 8 of the official comments to §2-313 states that it must be determined ‘[w]hat statements of the seller have in the circumstances and objective judgment become part of the basis of the bargain ?’ And in answer thereto, the commentators declare that ‘all of the statements of the seller do so unless good reason is shown to the contrary.’ ” Id. at 1003.

The record in this case is void of any indication that the purchaser did not exercise good judgment in purchasing the merchandise based upon the seller’s representations.

We hold that the facts in this case do not support an implied warranty theory of fitness for a particular use pursuant to sec. 402.315, Stats., and note further for this section to be applicable the seller must select the goods. This requirement has been explained in Williston, Sales in the following language:

“Obviously, in order for the implied warranty of fitness for a particular purpose to arise, and for the buyer to be able to apply §2-315, there must be a reliance on the seller by the buyer and that seller must select goods which turn out to be unfit for the particular purpose indicated by the buyer. Where the buyer makes his own selection of goods, he cannot expect to recover upon the implied warranty of fitness for a particular purpose, since he does not meet the criteria for applying §2-315 . . . .” Id. at Vol. 3 at 125 (4th ed. 1974).

Courts of this state should carefully consider and evaluate the circumstances surrounding transactions where there is a claim made of an express warranty in a sale. Judicial decisions must not inhibit the free flow of relevant information between the buyer and the seller. Nevertheless, a merchant must be cautious in going beyond “puffing” in making claims and representations about their product. Further, the seller must give specific directions when he claims the goods are suitable for an intended and limited use. A merchant’s vague or incomplete directions will induce the purchase of merchandise and often these directions are as misleading as when erroneous affirmations of fact are given. A merchant who knows the limitations of his product will bear no liability as long as he is truthful and accurate in his representations to the customer.

By the Court. — Judgment reversed and cause remanded for proceedings consistent with this opinion.