Opinion
Civ. No. 3592.
February 17, 1921.
APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. Affirmed.
The facts are stated in the opinion of the court.
George G. Graham for Appellant.
Everts Ewing, J. R. Fitch and Walling Levy for Respondent.
The plaintiff brought this action against the defendant to recover damages for an alleged breach of warranty. A trial was had in the lower court and at the end of the plaintiff's case the defendant moved for a nonsuit. The motion was granted, judgment was entered for the defendant, and the plaintiff appealed under section 953a of the Code of Civil Procedure. At the time the motion was granted the trial court had received considerable parol evidence on the issue as to what warranties, if any, were made. Such evidence was introduced over the objection and exception of the respondent. If the oral evidence was admissible the lower court erred in granting the nonsuit. If the evidence was inadmissible the lower court erred in receiving the evidence, but cured the error by granting the nonsuit.
[1] In the first place, we will, therefore, examine into the question as to the admissibility of the evidence which was tendered and received. The appellant had bought a second-hand automobile from the respondent. The purchase was evidenced by a formal written transfer which was signed by the buyer and by the seller. The subject of the sale is described as "One Reo Automobile Motor No. _____ Touring body _______ with complete equipment. Serial No. 9935." The writing contains nothing as to condition. On the trial the appellant introduced oral testimony that the respondent had, just prior to the sale, represented that the sale was to include "One Reo Automobile with complete equipment," and also two used casings for extras and three or four used tubes all in first-class A-1 condition. The respondent also introduced oral testimony that the property as delivered was not in first-class A-1 condition and that the extra tubes and casings were not delivered at all. At all times the respondent objected that the oral representations, as to the articles covered by the sale and as to the condition of the same, were incompetent and that the whole subject was covered by the written contract.
The appellant contends that the evidence was properly received and in support of her contention she cites Maxson v. Llewelyn, 122 Cal. 195, [54 P. 732], Muller v. Palmer, 144 Cal. 305, [ 77 P. 954, Hodgkins v. Dunham, 10 Cal.App. 690, [ 103 P. 351], Troy Laundry Machinery Co. v. Drivers' Independent Laundry Co., 14 Cal.App. 152, [ 111 P. 121], Jones v. Grieve, 15 Cal.App. 561, [ 115 P. 333], and Luitweiler Pumping Engine Co. v. Ukiah Water etc. Co., 16 Cal.App. 198, [ 116 P. 707, 712]. All of those cases involved unilateral contracts such as a deed, a bill of sale, a guaranty, an order for merchandise, etc., or contracts resting on parol. She could have cited some cases of the same general nature and which are still later. ( Myers v. Lowery, 46 Cal.App. 682, [ 189 P. 793], and Crouch v. Wilson, 183 Cal. 576, [ 191 P. 916].) The respondent contends that the evidence was improperly received and the trial court did not err by ignoring the evidence and treating it as though it were not before the court. In this behalf the respondent cites cases which involved bilateral formal written contracts. ( Peterson v. Chaix, 5 Cal.App. 525, [ 90 P. 948], Tockstein v. Pacific Kissel Kar Branch Co., 33 Cal.App. 262, [164 P. 906], Munn v. Earl C. Anthony, Inc., 36 Cal.App. 312, [ 171 P. 1082], Yuba Mfg. Co. v. Stone, 39 Cal.App. 440, [ 179 P. 418], and Case Threshing Machine Co. v. Copren Bros., 45 Cal.App. 159, [ 187 P. 772].) As it was not claimed that the written contract contained a latent ambiguity, it was error to resort to parol testimony for the purpose of showing that respondent sold appellant "2 casings and 3 or 4 tubes," although the same were not mentioned in the contract. ( Peterson v. Chaix, supra.) [2] For the same reason it was not competent to show, under the facts of this case, any express warranties as to the quality or character of the automobile other than as stated in the written contract. ( Munn v. Earl C. Anthony, Inc., supra.) If it be said that the formal contract between the parties was silent as to quality and therefore the evidence was admissible, the answer is that the same rule applies. ( Germain Co. v. Armsby Co., 153 Cal. 585, [96 P. 319]; United Iron Works v. Outer Harbor Co., 168 Cal. 81, 85, [ 141 P. 917]; Electric Storage Battery Co. v. Waterloo C. F. N. Ry. Co., 138 Iowa, 369, [19 L. R. A. (N. S.) 1183, 116 N.W. 144].)
[3] The appellant cites section 1767 of the Civil Code and contends that an implied warranty exists under the facts of this case. The undisputed facts show, among other things, that the seller was not the manufacturer of the machine in question; that he had for some time been using it; that it was a second-hand car; that it was present during nearly all of the negotiations and that the seller stated to the buyer that she could have it examined by any mechanic, but that she did not do so. The record does not show that it was at any time claimed, or that it is now claimed, that the seller occupied any position of trust or confidence toward the buyer. In Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 116, [28 L.Ed. 86, 3 Sup. Ct. Rep. 537, 542, see, also, Rose's U.S. Notes], the court says: "According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely and necessarily relied on the judgment of the seller and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold, and the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be, in fact, in the particular case, any inequality, it is such that the law cannot or ought not to attempt to provide against; consequently, the buyer in such cases — the seller giving no express war, ranty and making no representations tending to mislead — is holden to have purchased entirely on his own judgment." To the same effect are Barnard v. Kellogg, 10 Wall. (77 U.S.) 383, [19 L.Ed. 987, see, also, Rose's U.S. Notes]; Hurley-Mason Co. v. Stebbins, etc., 79 Wn. 366, [Ann. Cas. 1916A, 948, L. R. A. 1915B, 1131, and notes, 140 P. 381]; Byrne v. Jansen, 50 Cal. 624, 627; Moore v. McKinlay, 5 Cal. 471; Kenney v. Grogan, 17 Cal.App. 527, 532, [ 120 P. 433]; Colchord Machinery Co. v. Loy-Wilson Foundry Co., 131 Mo. App. 540, 547, [110 S.W. 630]. In the text (35 Cyc. 408) it is stated: "On a sale of machinery there is in general an implied warranty that the machine is reasonably adapted to the purpose for which it is purchased. No such warranty is implied, however, on the sale of a second-hand machine." The same rule is stated and followed in Ramming v. Caldwell, 43 Ill. App. 175, 179; Perine Co. v. Buck, 90 Wn. 344, [Ann. Cas. 1917C, 341, 156 P. 20, 22]; Bayer v. Winton Motor Car Co., 194 Mich. 222, [160 N.W. 642, 644]; Johnson v. Carden, 187 Ala. 142, [65 So. 813].
Excluding from our consideration the oral testimony that was introduced over the objection and exception of the respondent, there was no evidence of a breach of any express warranty nor of the breach of any implied warranty. The trial court did not err, therefore, in granting the motion.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.