Opinion
Decided January 3, 1927.
Sales — Implied warranty read into contract — Articles reasonably fit for purchaser's use known to seller — Section 8395, General Code — Seller cannot recover expense of repairs where goods defective — Evidence — Conversation of seller's agent prior to contract admissible — Place where gasoline tanks to be tested — Contract terms not varied by parol.
1. Under contract for purchase of gasoline tanks, where seller knew purpose for which tanks were purchased, implied warranty under Section 8395, General Code, that they would be reasonably fit for purpose of purchase, must be read into contract.
2. In action for balance due under contract for sale of gasoline tanks, where evidence justified conclusion that tanks were defective in construction, seller would not be entitled to recover expenses in repairing tanks.
3. In action to recover balance due under contract for sale of gasoline tanks impliedly warranted under Section 8395, General Code, to be reasonably fit for purpose intended, seller would be liable for latent defects or unfitness, regardless whether test was made at place of shipment or destination, and hence admission of evidence concerning conversation, prior to contract, between defendant and plaintiff's agent, that tanks were to be tested at destination, was not prejudicial to plaintiff.
ERROR: Court of Appeals for Hamilton county.
Mr. Edward H. Brink and Mr. A.R. Hoffman, for plaintiff in error.
Messrs. Cohen, Mack Hurtig, for defendant in error.
Plaintiff in error sold to the defendant in error seven tanks of the capacity of 20,000 gallons each, to be used for the storage of gasoline. The purchase and sale was made on written order. The agreed price was paid by the Queen City Company with the exception of a balance of $616.51, made up of a claim by the Queen City Company for its expenses claimed to have been incurred in the testing and installation of the tanks and the charge by the boiler works for its expenses in repairing the tanks.
Suit was brought in the municipal court by the Boiler Works Company against the Queen City Company for a balance of $616.51. The municipal court rendered judgment in favor of the defendant, the Queen City Company. The plaintiff thereupon prosecuted error to the court of common pleas, which court affirmed the judgment of the municipal court. Error is prosecuted here, seeking a reversal of the court of common pleas and of the municipal court.
As indicated, the Queen City Company refused payment on the ground of breach of warranty, in that the tanks were defective, and the defective condition resulted in expenses incurred to the amount of the claim sued upon.
Plaintiff in error claims that the condition of the tanks was due to no fault on its part, but to the improper handling in the unloading and installing of the tanks by the Queen City Company, that the expenses incurred by it in repairing the tanks were a proper charge, and that the expense incurred by the Queen City Company was not properly chargeable to it.
The plaintiff in error sought to sustain its right to the judgment for the amount sued for upon the ground that the written contract only required it to load the tanks on board cars at Sharpsville, that it had complied with the contract, and that the tanks were placed f.o.b. cars and were free from defects.
The Queen City Company contends, as a part of the contract, that the tanks were to stand a five-pound air pressure, at its place of business in Cincinnati; that when they were installed, they were found to be leaky, and, upon a five-pound air test, proved seriously defective.
Section 8395, General Code, on implied warranty, must be read into the contract. The seller knew the purpose for which the tanks were purchased and were to be used, and there follows an implied warranty that they would be reasonably fit for the purpose for which they were purchased.
The evidence adduced at the trial was somewhat conflicting as to the facts. However, we are of the opinion that the trial court was justified in arriving at the conclusion that the tanks were defective in construction. The plaintiff would therefore not be entitled to recover for expenses in repairing the tanks under this state of facts. The charge by the defendant, the Queen City Company, for $256.66, for its expenses, is of a more doubtful character, but, under the state of the evidence, we will not disturb the judgment on that account.
Plaintiff in error makes a point of error that evidence was admitted, over objection, concerning a conversation had prior to the contract with the agent of the Boiler Works Company to the effect that the tanks were to be tested at Cincinnati. It is urged that the admission of this testimony was prejudicial error, because it varies the terms of the written contract. Under the implied warranty, whether the test was to be made at the place of shipment or at destination is immaterial, as, in either event, if the tanks were unfit, or had latent defects, the seller would be liable. Therefore the admission of this evidence could not prejudice the plaintiff in error's case.
We find no error in the record prejudicial to the plaintiff in error, and the judgment is therefore affirmed.
Judgment affirmed.
BUCHWALTER, P.J., and CUSHING, J., concur.