International Motor Co. v. Oldfield

106 A. 611, 134 Md. 207, 1919 Md. LEXIS 64

• Court: Court of Appeals of Maryland
• Decided: March 6, 1919
• Status: Published

Opinion

Briscoe, J.,

delivered the opinion of the Court.

The plaintiff brought, this suit against the defendant, in the Baltimore City Court, to recover damages for the breach of the warranty in a contract of sale of a five-ton motor truck sold the plaintiff by the defendant for the sum of four thousand two hundred and ten dollars.

The plaintiff is a resident of Harford County, Maryland, and purchased the truck for use in his truck express, and freight business in carrying freight and merchandise between Baltimore City and Havre de Grace, Maryland, being a distance of about forty miles and over thei State road between those places. He represented to the agent of the defendant, at the time of the purchase, that he desired a motor truck, suitable for this purpose, and stated the route over which it was to be operated.

The defendant is a body corporate engaged in the sale and manufacture'of motor tracks, in New York City, where its principal office is located and where the tracks; are made and manufactured. The defendant agreed to furnish a track suitable for the plaintiff’s business, and as guaranteed by the terms of the contract.

The contract of purchase is dated dune 28th, 1915, and it provides that the plaintiff purchased of the defendant one of its Saurer Motor Tracks upon the following terms:

One (1) Saurer chassis, with maximum guaranteed live load capacity of ten thousand (10,000) pounds, with regular equipment in accordance with standard specifications, to be considered as part of contract; truck to be shipped from the company’s shops on or about the 1st of August, 1935, after acceptance of order and receipt of.final'detailed information, at the prices fixed, namely: ■

Chassis, Type No. 1, capacity,

10,000 lbs...................$4,800.00

Maximum length of body wheel base, 177% in.; tires, Goodrich Demountable, front 36x5, single rear 42x6 dual; style of body

as per blue print No. 5969.... 450.00

-$5,250.00

Less special allowance................ 1,040.00

$4,210.00

Terms of payment: Cash on delivery.

The contract also' contained the following guarantee:

The company guarantees all parts of cars and trucks against defective material and workmanship for a period of one year from date of shipment to the ex tent that they will furnish free of charge, f. o. h. factory, new parts in exchange for defective parts, provided said defective parts are returned to the factory, charges prepaid. This guarantee does not apply to chains, tires, electric equipment, or other accessories not manufactured by the company, nor to damages or breakages resulting from wear and tear, accidents or misuse. jSTo guarantee, express or implied, other than herein stated is made by the company.

The truck was delivered in Baltimore City and accepted by the plaintiff, under the contract, sometime in August, 1915, and the contract price ($4,210) paid, and $96.-50-.for certain extras, including' cost of delivery.

The trial of the case resulted in a. verdict for the plaintiff for the sum of $1,710.00 and from a judgment on. that verdict the defendant has appealed.

The single question presented on the appeal, as stated by the appellant in its brief, is the correctness of the rulings of the Court below, in granting the plaintiff’s prayers, on the measure of damages, 2% and 4th prayers, and in rejecting the defendant’s second prayer, and in granting it as modified.

There is no exception to the granting of the plaintiff’s first prayer, and the defendant’s first and third prayers were also granted, without objection. The prayers will be set out in full by the Reporter.

The declaration, it will be seen, contains tlie common counts and two special counts. The fourth special count alleges the warranty and tlie breach of the contract, as follows: that the defendant by warranting one of its motor trucks, known as a Saurer Chassis, with a specified body, to have a máximum live load capacity of 10,000 pounds, sold the same to the plaintiff for use in his said business as aforesaid; yet the said motor truck bad not a maximum live load capacity of 10,000 pounds; whereby said motor truck was of no use to the plaintiff, and the plaintiff was unable to carry on his said business, and lost many customers and much trade and large profits, in and about the same; and was put to much cost and expense about said motor truck, and in trying to use it, and in keeping it, and endeavoring to induce the defendant to receive it back; and the plaintiff afterwards resold said motor truck for a less sum than he paid the defendant for it, and incurred expense on the resale; and by reason of the failure of the defendant as aforesáid, the plaintiff has been otherwise greatly injured and damaged.

The plaintiff filed a bill of particulars, setting out his claims and demands under the declaration. The general issue pleas and a plea of set-off were filed by the defendant to the plaintiff’s claim and issue was joined upon the pleas, and the replication to the defendant’s plea of set-off.

The authorities agree that upon a breach of the warranty two remedies are open to the buyer: First, he may return the chattel, if delivered, within a reasonable time after discovering the breach, and recover back in assumpsit on the common counts the amount paid, or, secondly, he may retain the chattel and sue upon the contract for damages resulting from the breach of the warranty. Lame v. Lantz, 27 Md. 216; Horn v. Buck, 48 Md. 358; Dimmick v. Hendley, 117 Md. 458; White Automobile Co. v. Dorsey, 119 Md. 258.

In the present case the appellee did not elect to rescind the contract and sue to recover back the purchase money, but brought this suit upon the warranty to recover damages for its breach.

The measure of damages, as a general rule, in a suit for breach of warranty is held, by a number of decisions of this Court, to be the difference between the value of the article with the defect warranted against and the value it would have borne without the defect.

In Lane v. Lantz, 27 Md. 211, the rule which has been repeatedly followed by this Court, is thus stated: In an action upon a warranty, where the article has not been returned, the measure of damages is the difference between the value of the article with the defect and its value without it. And the price paid is strong prima facie evidence of the value of the article if sound. Horn v. Buck, 48 Md. 358; White Automobile Co. v. Dorsey, 119 Md. 258; Greer v. Whalen, 125 Md. 280; Queen Glass Co, v. Clay Pot Co., 97 Md. 429.

Coming now to the action of the Court on the prayers, we find that the plaintiff’s first prayer properly instructed the jury that if they found the facts set out in the prayer, then the plaintiff was entitled to recover.

The plaintiff withdrew its: second prayer, upon the measure of damages and offered two others, which are numbered 2% and 4th prayers. They were granted by the Court, and are as follows:

Pft’s 2% Prayer.—If the jury find their verdict for the plaintiff under his first prayer, then the plaintiff is entitled to recover as damages the difference, if any, they find from the evidence between the value of the truck delivered to the plaintiff, at the time of delivery, and what it would have been worth if it had been as represented in the defendant’s guarantee, together with any expense the jury may find from the evidence the plaintiff was put to in repairing broken parts-of said truck resulting directly and naturally from the breach of guaranty mentioned in the declaration.

Plifs J/th Prayer.—If the jury find that after the delivery of said truck the plaintiff used and operated it at- the- request and upon the representations of the defendant that it was as warranted and was all right, then the plaintiff is- entitled to-recover in addition to the damages mentioned in the plaintiff’s 21/2 prayer such depreciation in the value of the truck they may find, if any, as the direct and natural result of such use, provided they further find that the truck was used and operated during such time with ordinary care.

"While these prayers are in part within the- general rule as to the proper measure of damages, applicable to the case, they are defective in ignoring the uncontradicted evidence in the record, that the plaintiff operated the truck and used it constantly in its business from August. 16th, 1915, to November, 1916, a period of about fifteen months and during that time it made its regular trips over the- route, and was not out o£ commission over twenty days.

In Seaboard A. L. Co. v. Phillips, 108 Md. 296, it is said an unqualified statement of the general rule as to the measure of damages does not always form a proper instruction to a jury, but where there is evidence tending to show the existence of circumstances calling for a mitigation of damages the instruction to the jury should call their attention to that evidence and direct them to give it due consideration if they believe it to be true, so that the measure of damages may be determined in accordance with what are found to be the facts of the particular case. Di Giorgio Co. v. Stock, 116 Md. 206; White Automobile Co. v. Dorsey, 119 Md. 264.

In Horn v. Buck, 48 Md. 358, a similar question was presented, and this Court said: “Upon this state of facts it is clear that plaintiff was not entitled to' recover the whole amount of the purchase money. The measure of damages in a case of this kind, for a breach of the warranty, is the difference between the value of the mare, with the defect warranted against and the value she would have had without that defect. Lane v. Lantz, 27 Md. 216.

“In that case it was said that the price paid, in the absence of other proof, is evidence of the value of the animal, if sound. From this is to be deducted the amount she was worth, in her actual condition at the time of the sale, and the difference would constitute the true measure of damages. In this case there is evidence that she was of some value; she was actually used by the plaintiff for sometime, and was sold on the 20th of December for sixty dollars.

“There is evidence that the plaintiff incurred expenses for the keep and doctoring of the mare while in his possession, for which he ought to' be allowed; on the other hand, he is chargeable for whatever benefit and advantage' he derived from using her.”

In Central Trust Co. v. Arctic Ice Machine Co., 77 Md. 236, it was held, that from the damages: the Maryland Ice Co. was entitled to recover must be deducted from the total rental value, the fair rental value of the machines for the portion of that period that they were actually in use by or for the Maryland Ice Co., otherwise the Ice Company would recover damages for the time the machines were yielding it some benefit.

The prayers upon the measure of damages, as granted in this case, excluded from the consideration of the jury and denied to the defendant any credit whatever for the fair usable value of the truck for the time it was used by the plaintiff, from August 16th, 1915, to November, 1916, when it was in almost daily use by the plaintiff in his business on and over the route for which it was purchased.

The defendant’s second prayer, as modified by the court, is open to the same objection, and, for the reasons stated, there was error in granting it as modified. Robinson v. Silver, 120 Md. 46; Darrin v. Whittingham, 107 Md. 46. There was no error in the ruling of the court, in overruling the defendant’s motion to exclude from the consideration of the jury certain items set forth in the plaintiff’s bill of particulars and testified to¡ by the plaintiff as having been paid by him, as stated in the first bill of exception. This exception was not pressed in argument and no point is made on it, in the appellant’s brief.

For the errors in the rulings on the prayers, as indicated, the judgment appealed from must be reversed and a new trial awarded.

Judgment reversed, with costs, and new I rial awarded.