Opinion
Rehearing Granted July 11, 1927.
Appeal from Superior Court, City and County of San Francisco; Walter Perry Johnson, Judge.
Action by L. D. Armstrong, doing business under the name and style of the L. D. Armstrong Company, against the Lassen Lumber & Box Company. From a judgment for plaintiff and an order made after trial and entry of judgment allowing plaintiff to amend its second amended complaint, defendant appeals. Modified and affirmed.
COUNSEL
Cushing & Cushing and Walter Slack, all of San Francisco, for appellant.
Horace M. Street, of San Francisco, for respondent.
OPINION
BARTLETT, Justice pro tem.
Defendant appeals from a judgment against it for $2,113.29 and interest on $800 of this amount from March 24, 1922, and from an order allowing plaintiff to amend its second amended complaint, made after trial of the action and entry of judgment.
The action arises out of a sale of a used 80 horse power return tubular boiler and certain fittings thereof, claimed to have been made to plaintiff by defendant on March 24, 1922. The material facts in the case are: During the times involved in the action and prior thereto, plaintiff was engaged in the business of buying and selling steam boilers at San Francisco, Cal., and defendant was operating a sawmill and box factory at Susanville, Cal. At the beginning of 1922 plaintiff ascertained that the Leal & Sons Lumber Company, who were conducting a sawmill business at Brownsville, Cal., desired to purchase an 80 horse power return tubular boiler, good for 140 pounds per square inch pressure and in good condition, and requested an employee, one S.W. Smith, to find and secure such boiler. Smith at this time, having a memorandum in his office showing that defendant had some boilers for sale, visited Mr. R. D. Baker, president of defendant, and told him he was seeking an 80 horse power return tubular boiler good for 140 pounds’ pressure; that he wanted the boiler for resale purposes; that he would pay cash; and that his purchaser would buy on time. Baker showed Smith a list that had on it two boilers for sale described on the list thus: "2-60′ x16′ boilers, 140-pound pressure, including breeching, stack, front, water column, each $900." Baker told Smith other parties had an option for these boilers, and that, if this was not exercised, he would be glad to negotiate with Smith. After the option expired, further verbal negotiations were had between Smith and Baker, resulting in an offer from Baker to sell one of the boilers for $800 cash. In these conversations no mention was made by Smith that the boiler was being purchased for either the L. D. Armstrong Company or the Leal & Sons Lumber Company. This fact was first brought to defendant’s notice in a letter left at defendant’s office of March 22, 1922, addressed to defendant, which stated:
"Pursuant to your offer for the sale of one boiler 60′ x16′, good for 140 lbs. working pressure, and including breaching, stack, front, grates, and fittings, all in good order, f. o. b. cars Susanville, Cal., I have this day delivered at your office in the Monadnock Building, San Francisco, Cal., a check for the agreed price of eight hundred ($800.00) dollars, signed by L. D. Armstrong Co. together with a bill of sale to be signed by your company in favor of the said L. D. Armstrong Co.
"To avoid any further delay I wish you would make immediate shipment of the above as follows, viz.:
"From-L. D. Armstrong Co.
"To-Leal and Sons Lumber Co., Oroville, Cal.
"Via Southern Pacific Co.-as carload shipment. Please mail the B/L to me as soon as possible and oblige.
"Very truly yours, S.W. Smith."
The descriptive part of the bill of sale referred to in this letter is as follows:
"One butt-strap boiler 60′ in diameter by 16′ long for 140 pounds’ working pressure, complete with breachings, stack, front, grates, and full complement of fittings.
"Boiler now located at our plant at Susanville, California. Above consideration includes delivery of boiler on cars in good condition at Susanville."
Inclosed with this letter was plaintiff’s check, made payable to defendant’s order in the sum of $800. To this defendant replied with a letter addressed to S.W. Smith stating:
"We have your letter 22d, and, as arranged with you this morning, we have telegraphed our people at Susanville to make shipment of the boiler and parts quick as possible, shipping same as from L. D. Armstrong Co. to Leal & Sons Lumber Co., Oroville, Cal., via Southern Pacific as a carload shipment, and on receipt of the bill of lading will forward same to you without delay.
"As explained and arranged, this boiler includes breeching, stack, half arch front, water column, and safety valve, but no grate bars or other fitting, and we have issued a bill of sale accordingly to L. D. Armstrong Co., and we wish to acknowledge receipt also of their check for $800 in payment of same f. o. b. cars Susanville."
Inclosed with the same was a bill of sale reading as follows:
"For value received, we hereby sell, assign, and transfer to the L. D. Armstrong Co. the following described personal property viz.:
"One butt-strap boiler 60′ in diameter by 16′ long for 140 pounds’ working pressure with breeching, stack, half arch front, and safety valve.
"This equipment is now located at our plant at Susanville, California. Above consideration includes delivery on car in good condition at Susanville.
"In witness whereof, we have hereunto set our hand this 24th day of March, A.D. 1922.
"[Corporate Seal.]
"Lassen Lumber & Box Co.,
"R. D. Baker, President.
"Witness: L. Johnson."
Defendant then loaded the boiler on a freight car at Susanville and caused the same to be shipped to Leal & Sons Lumber Company consigned to Oroville, Cal. There being no railroad from Oroville to Brownsville, Leal & Sons Lumber Company had the same diverted from Oroville to Honcut, and from there it was hauled to their plant at Brownsville with trucks, a distance of some 20 miles. There the Leal & Sons Lumber Company examined the boiler for the first time, and, finding a number of defects, notified plaintiff of the same and demanded another boiler from plaintiff. Plaintiff sent a boiler maker and helper, a boiler inspector of one of the companies that insure boilers, and one of the members of the State Industrial Accident Commission to inspect the boiler. The boiler workers were attempting to repair the boiler when the inspectors came and stopped work because of the defects found; there being what is termed a bag in the boiler, a lamination in one of its plates, some burnt-off rivets, and injured left-hand sheet. It is not claimed that the defect styled a "lamination" was known to the defendant prior to the sale of the boiler, but it is urged that the other defects, the bag in its bottom, twelve burnt-off rivets at its rear seam, and supporting lugs driven into its left-hand sheet, were known to defendant prior to its making the sale, and justified the refusal of the Leal & Sons Lumber Company to accept the boiler shipped it by defendant. Plaintiff expended $180.11 in attempting to repair the boiler sold by defendant. On discovering that further efforts in that line would be futile, it searched available markets for a suitable return tubular boiler to deliver under its contract, but without success. It then induced Leal & Sons Lumber Company to accept a boiler of different type, styled a water tube boiler. This necessitated the erection of the boiler by plaintiff; such work requiring experienced hands, which is not necessary for installing a return tubular boiler. The cost of the water tube boiler and its erection was $1,933.18. The cheapest secondhand return tubular boiler plaintiff could discover with which to supply the Leal & Sons Lumber Company, after it declined that shipped them by defendant, was at a price of $2,100. The evidence shows that a new return tubular boiler of the class sold by defendant would have cost, at San Francisco, in April, 1922, from $2,300 to $2,400. The price which Leal & Sons Lumber Company agreed to pay plaintiff for the boiler procured from defendant was $1,575. The trial court found that the boiler furnished by defendant was of no value, fixed the damages at $2,113.29, being $1,933.18 costs of the water tube boiler and its erection and $180.11 for plaintiff’s expense in endeavoring to repair defendant’s boiler at Brownsville. The judgment also awarded plaintiff interest at 7 per cent. per annum on $800 from March 24, 1922, and costs, and ordered and adjudged that upon payment of the judgment defendant might retake his boiler.
During the trial, plaintiff asked leave to amend his second amended complaint to conform to the evidence, and permission to so amend was granted, but through neglect and inadvertence the formal amendment was not engrossed and made part of the record in the case until after this appeal was taken. This was done under an order of the trial court on motion of plaintiff and after a hearing thereon, and defendant has appealed from this order, which appeal has been heard with the appeal from the judgment.
The amendment allowed to plaintiff’s second amended complaint and filed after the judgment was appealed from sets forth the facts concerning the installation of the used water tube boiler for the Leal & Sons Lumber Company in place of the defendant’s return tubular boiler, the reasons for this action, the costs of doing the same, and is in conformity with the evidence admitted at the trial.
Appellant does not question the right of amending pleadings to conform to the proofs in proper cases but contends that the only time this can be done is prior to judgment. The precise point presented by this case does not appear to have been heretofore passed upon by the appellate courts of this state. A liberal allowance of amendments by trial courts, in order that pleadings should conform to the proofs, has been generally sustained on appeals from such orders. In Koch v. Wilcoxon, 30 Cal.App. 517, 158 P. 1048, it is said: "An amendment to conform to the proof may always be made, provided the cause of action is not thereby changed." Hancock v. Board of Education, 140 Cal. 554, 74 P. 44, Henry v. Phillips, 163 Cal. 135, 124 P. 837, Ann. Cas. 1914A, 39, and Wardrobe v. Miller, 53 Cal.App. 370, 200 P. 77, are to the same effect. The trial court in this case has done on motion an act similar to that which the Supreme Court directed the trial court to do in the case of Alameda County v. Crocker, 125 Cal. 101, 57 P. 766, where the court below was ordered to amend the complaint as of a date prior to the judgment, by inserting the true names of defendants sued under fictitious names. The decision of the United States Supreme Court in the case of Norton v. Larney, 266 U.S. 511, 45 S.Ct. 145, 69 L.Ed. 413, is an interesting one regarding allowing of necessary amendments in trial courts, where it is said:
"Where the amendment must necessarily be allowed by the trial court, it would be mere ceremony to reverse the decree and remit the purely formal making of the amendment to the lower court. We shall therefore consider the bill as amended to conform to the facts of record."
Under all the circumstances, if any error was committed by the trial court in allowing the filing of the amendment in question after appeal, so as to make the pleadings conform to the proof, it must be held an error that has not resulted in a miscarriage of justice after an examination of the entire case and the evidence.
The second amended complaint, on which the action was tried, is in two counts; the first being based on deceit, and the second on breach of warranty. The trial court found that plaintiff bought the defendant’s boiler in reliance on defendant’s representation that the boiler was in good condition and good for 140 pounds’ pressure; that plaintiff entered into his contract with Leal & Sons Lumber Company in reliance on defendant’s representations; that on the arrival of the boiler at Brownsville plaintiff in good faith made an effort to repair the boiler with competent workmen; that the boiler was not in good condition; that defendant knew this when it sold the boiler to plaintiff; and that the boiler was of no value either when placed on the cars at Susanville or at any time thereafter. These findings have ample support in the evidence introduced, and the only substantial question to determine is whether or not the trial court has correctly determined the amount of damage recoverable by plaintiff. At the inception of the transaction, defendant was informed that the boiler was being purchased for purposes of resale and that the boiler required was one of 80 horse power in good condition and good for 140 pounds’ working pressure.
The description in its bill of sale of March 24, 1922, describing the property sold as "one butt-strap boiler 60′ in diameter by 16′ long for 140 pounds’ working pressure, with breeching, stock, half arch front, and safety valve," and stating that this equipment was located at defendant’s plant at Susanville, and that the consideration received included delivery on car in good condition at Susanville, cannot be construed as other than a warranty on defendant’s part that the boiler sold was in good condition and capable of being used with safety under a steam pressure of 140 pounds.
That the boiler was bagged and a number of its rivets burnt out when it was placed on the car at Susanville is shown by the evidence, and that because of these defects it was not at that time good for 140 pounds’ pressure cannot be questioned. That the boiler was bagged and had a defective rear seam had been called to the attention of defendant in a report of the Hartford Steam Boiler Inspection Company on an inspection made on the 16th and 17th of April, 1920.
Defendant, when it represented the boiler to be in good condition, made a positive assertion not warranted by its information of that which was not true, even though it may have believed it to be true. Such statement, if made by defendant with intent to induce plaintiff to enter into the contract of purchase, would be an actual fraud on plaintiff, and would justify a recovery of damages for such fraud. Subdivision 2, § 1572, Civ. Code.
Summarizing what has been said regarding the issues, it may be stated in general language that in its first count the respondent pleaded a cause of action based on fraudulent representations, and, affirming the contract, asked for damages. In its second count it pleaded a breach of warranty. The trial court made findings in favor of the plaintiff on the allegations contained in both counts. The damages for a breach of a warranty of quality of personal property is stated in section 3313 of the Civil Code to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time. Defendant’s boiler was of no value either at Susanville or when it arrived at Brownsville. Plaintiff, in reliance on defendant’s statements as to quality and its warranty of quality, had obligated itself to furnish Leal & Sons Lumber Company, with an 80 horse power tubular boiler, designed and built for 140 pounds’ working pressure, and its inability to furnish this boiler made it liable for damages to Leal & Sons Lumber Company when it became apparent that defendant’s boiler was valueless. A search of available markets disclosed that a return 80 horse power tubular boiler of 140 pounds’ pressure capacity could not be secured for less than $2,100. In an endeavor to mitigate the damages consequent on the boiler being found defective, plaintiff attempted to repair it, expending $180.11 therefor. When plaintiff learned that, after all possible repairs were made, the state inspector would not allow it to be operated under 140 pounds’ pressure, it induced Leal & Sons Lumber Company to accept a different type of boiler for the purchase and installation of which plaintiff expended the sum of $1,933.18. Defendant is not in a position to complain of the cost or the boiler which was installed, as it cost less than would have been the cost of a boiler having the specifications agreed to by the appellant. Neither should defendant be freed from liability for the cost of the attempt to repair the boiler sold by it. The amount of damages awarded by the judgment, $2,113.39, was not in excess of the amount to which the respondent was entitled.
It cannot be held that defendant is liable for interest on the $800 paid it for the boiler sold plaintiff. Under section 3287 of the Civil Code every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day. The amount of plaintiff’s damage here could only be made certain on a determination of the amount of the same from evidence introduced on the trial of an action therefor, and this is the only relief sought by plaintiff in this action. That interest is not recoverable in cases such as this until the damages are liquidated is clearly held in the case of Krasilnikoff v. Dundon, 8 Cal.App. 406, 97 P. 172.
The allowance in the judgment of interest on the sum of $800 from March 24, 1922, is stricken out. As so modified, the judgment is affirmed, each party to pay its costs on this appeal.
We concur: KOFORD, P. J.; STURTEVANT, J.