Opinion
SC 722.
July 11, 1974.
Appeal from the Circuit Court, Jefferson County, Ingram Beasley, J.
John P. Carlton, Birmingham, for appellant.
A complaint in an action for breach of warranty is sufficient if it alleges the fact of purchase by plaintiff of a chattel from defendant; alleges the substance of the warranty given by defendant upon that chattel; and alleges, in general terms, the breach of that warranty. A.R.C.P. Rule 84 (Alabama Rules of Civil Procedure), A.R.C.P. "Committee Comments" to Rule 84, A.R.C.P Appendix of Forms, Form 21, McKenzie v. Springfield City Water Co., 14 F.R.D. 503 (W.D.Mo. 1953). The Alabama Rules of Civil Procedure may not properly be used to deny a substantive right available under the former practice to a party to an action pending on the effective date of the new rules. A.R.C.P. Rule 86. Notice of breach of warranty which must be given by a purchaser to his seller in order to preserve the right of the former against the latter is such notice as will fairly apprise the seller that a breach has occurred, and that the purchaser has been damaged and/or injured thereby. Title 7A, Sec. 2-607, Code; Smith v. Pizitz of Bessemer, 271 Ala. 101, 122 So.2d 591 (1960); Lieberman v. W. M. Gulliksen Mfg. Co., 332 Mass. 439, 125 N.E.2d 396 (1955); Olson Mfg. Company v. Roberts, 131 Colo. 152, 280 P.2d 433 (1955); Gilger v. Montgomery Lumber Co., 73 S.D. 599, 47 N.W.2d 281 (1951); Barni v. Kutner, 45 Del. 550, 76 A.2d 801 (1950); Jamrog v. H. L. Handy Company, 284 Mass. 195, 187 N.E. 540 (1933). Notice to a seller of a breach of warranty may be given either orally or in writing. Lieberman v. W. M. Gulliksen Mfg. Co., 332 Mass. 439, 125 N.E.2d 396 (1955).
London, Yancey, Clark Allen and John M. Laney, Jr., Birmingham, for appellee.
The term "Demurrer" shall be understood to mean "Motion to Dismiss for Failure to State a Claim" or "Motion to Strike an Insufficient Defense," as set out in Rule 12. Rule 81, A.R.C.P. A.R.C.P. Appendix of Forms, Form 26. The giving of notice within a reasonable time is a substantive ingredient within a cause of action for breach of warranty and such notice must be plead and proved. Smith v. Pizitz of Bessemer, 271 Ala. 101, 122 So.2d 591; Lindsey v. International Shoe Co., 45 Ala. App. 566, 233 So.2d 507; A.R.C.P. Appendix of Forms, Form 21; Rules 8, 9(c) A.R.C.P. T 7A, 2-607 Code of Ala. A complaint for breach of Implied and Express Warranty which contains no money demand does not state a claim for which relief may be granted. A.R.C.P. Rule 8; A.R.C.P. "Committee Comments" to Rule 8; A.R.C.P. Rule 84; A.R.C.P. Appendix of Forms, Form 21, Form 16; Blanks v. West Point Wholesale Grocery, 225 Ala. 74, 142 So. 49; Wright Miller; Federal Practice Procedure Civil Section 1259, Pg. 259. An appellate court has no jurisdiction of an appeal from a decision which the lower court had no jurisdiction to render and which decision is null and void. State v. Crook (1899), 123 Ala. 657, 27 So. 334; Local 1264, Internat. Broth. of Elec. Workers v. Broadcast Service of Mobile, Inc., 278 Ala. 29, 175 So.2d 460. Circuit Courts in Alabama are courts of general but not unlimited jurisdiction and are created by constitutional and statutory provision.
Virginia Page purchased a "camper" from Camper City. While riding down Interstate 59 between Birmingham and Gadsden, the seat in which Ms. Page was sitting gave way, due to faulty construction. As a result, she was thrown backward into the interior of the camper, where she suffered alleged serious injuries. Immediately following the incident, Ms. Page drove to Camper City's place of business and indicated what had occurred. Camper City thereupon modified and strengthened the seat and tended to Ms. Page's physical injuries on the spot.
Almost four years later in July, 1972, a suit was filed by Ms. Page against Camper City for breach of warranty both express and implied. Camper City filed a general demurrer and later amended it by adding the fact that the plaintiff had failed to allege in her complaint that written notice of the breach had been given. In July, 1973, the new Alabama Rules of Civil Procedure became effective. On August 7, 1973, the trial judge elected to treat the demurrer as a motion to dismiss and dismissed the case. A motion by Ms. Page to have the judgment of dismissal vacated and for leave to amend the complaint was overruled. This appeal followed.
Title 7A, § 2-725(1) provides for a four-year statute of limitations in contracts for sale.
Two of the three grounds in the original demurrer deal with negligence and not statutory breach of warranty. The third states there was a failure to state a cause of action and as such is not sufficient, due to lack of specificity.
One of the principal issues for decision in this appeal is whether or not written notice of a breach is required in this situation. If the notice given by Ms. Page, when she went to see Camper City after the accident, is consistent with the letter and spirit of the Uniform Commercial Code and § 2-607(3)(a) in particular, then the trial court improperly granted the motion to dismiss, based on the grounds stated in the amended demurrer. Title 7A, Code of Alabama, § 2-607(3)(a) states as follows:
As indicated in Note 2, the original demurrer was not well taken, as the grounds were without merit.
"(3) Where a tender has been accepted
"(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and . . ."
This subsection uses the word "notify", saying nothing about the method by which it is to be done. While in a subsection below, § 2-607(5)(a), the term "written notice" is specifically used. If the drafters had intended a requirement of written notice for § 2-607(3)(a) they could have easily included that requirement, but here they did not. We therefore find that the word "notify" as used in § 2-607(3)(a) encompasses a proper oral notification of any breach. Our conclusion is strengthened by the observation of a recent text on the Uniform Commercial Code, where the authors indicate that the word "notifies" is defined in such a way in Title 7A, § 1-201(26) as to reasonably include oral communication. Additionally, written requirements throughout the U.C.C. are usually imposed by the word "sent" or one of its derivatives. J. White R. Summers, Uniform Commercial Code 348 (1972).
The Official Comment to § 2-607 sets out what type of notice was envisioned by the drafters of the Code. Comment 4 says in part:
"The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched. There is no reason to require that the notification which saves the buyer's rights under this section must include a clear statement of all the objections that will be relied on by the buyer, . . . Nor is there reason for requiring the notification to be a claim for damages or any threatened litigation or other resort to remedy. The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation."
In Smith v. Pizitz, 271 Ala. 101, 122 So.2d 591 (1960), this court held that the allegation of notice is a condition precedent to recovery in consumer as well as commercial cases. As to what would constitute sufficient notice, it was indicated the degree of notice which at least comports with the notice an ordinary tort-feasor would have of his breach of duty is sufficient. Generally however, as in the case of what is a "reasonable time" under § 2-607, sufficiency of notice must be tested in light of the facts of the particular case. See Redman Industries v. Binkey, 49 Ala. App. 595, 274 So.2d 621 (1973).
Under the circumstances, the notice provided by Ms. Page was sufficient to inform the seller of the breach and its possible ramifications. Written notice also being unnecessary, we find that there was not a sufficient ground upon which to grant a dismissal. There might be some question as to whether there was an allegation of notice, but the amended complaint proffered by the appellant contained facts amounting to such an allegation. In any event, in the demurrer then before the court, this matter was not raised. Still believing Ms. Page needed to allege written notice, the trial court apparently refused to accept the amendment and vacate its earlier ruling.
Camper argues for the first time, on appeal, that the Circuit Court was without subject matter jurisdiction. We reject it. Ms. Page should have included a dollar amount in her claim for damages. The model forms in the appendix to the Alabama Rules of Civil Procedure suggest that a dollar amount should be included in the claim or demand for damages. The question, however, remains: "Was the failure to include a dollar amount jurisdictional?" We hold that it was not, in this case. Although we will notice lack of subject matter jurisdiction for the first time on appeal, we do not find that subject matter jurisdiction was not present in the instant case. The complaint alleged that the plaintiff's injuries were severe and disabling. This allegation was sufficient to invoke the subject matter jurisdiction of the Circuit Court.
Reversed and remanded.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.
HEFLIN, C. J., concurs in the result.