Certiorari Denied by Supreme Court September 7, 1965.
This is a suit for damages for breach of warranty filed in the Circuit Court of Giles County, and for the sake of convenience herein we will refer to the parties as plaintiffs and defendants as they were designated in the trial court.
The plaintiffs purchased from Associated Farm and Home Store of Elkton, Tennessee, a certain crawler type of tractor and a rotary mower or cutter, together with some other farm equipment that need not be mentioned here, since only the tractor and cutter are involved in this litigation. This equipment was purchased on an installment plan, but since the terms of payment are not at issue here, they need not be set forth in this opinion.
The plaintiffs insist that the tractor was defective because the engine would fail frequently under normal conditions, and that the cutter was defective because the blades and other parts of same would break under normal operating conditions; that service representatives of the dealer, Associated Farm and Home Store, and of the manufacturers made repeated attempts to repair the equipment so that it would properly operate, but such attempts were not successful and plaintiffs tendered it back to the seller and sought rescission of their purchase contract.
The seller insisted that the plaintiffs were not entitled to rescission and would not agree for the contract of purchase to be rescinded, whereupon the plaintiffs sued the Oliver Corporation, manufacturer of the tractor, and Dealer Associates, Inc., manufacturer of the rotary cutter.
The defendants first filed pleas in abatement which were overruled by the trial judge, after which they filed general issue pleas in which they specifically stated their defenses, including the defense of denying there was any privity of contract between the plaintiffs and defendants.
The case was tried before the circuit judge and a jury and at the close of plaintiffs' proof, the plaintiffs' counsel stated that he was relying upon rescission of the purchase contract, whereupon counsel for defendants moved the court to direct a verdict for the defendants upon several grounds, including the insistence there was no proof of any privity of contract between the plaintiffs and the defendants. This motion for a directed verdict was overruled by the court and after all the evidence was introduced, the case was submitted to the jury upon the court's charge, to which there is no exception. The jury found in favor of the plaintiffs and against defendants, Oliver Corporation, and awarded plaintiffs damages in the sum of $1,200.00, and further found in favor of the defendants, Dealer Associates, Inc.
The defendants filed a motion for a new trial and this motion for a new trial also included a renewal of the motion for a directed verdict in favor of the defendants, which motions were overruled by the trial court and the defendants have prayed and perfected an appeal in error to this Court.
The defendants have filed eight assignments of error, the first two assignments being as follows:
We will first discuss assignment of error number two because we think the question of whether there was any privity of contract between plaintiffs and defendant, Oliver Corporation, is the determinative question in this case.
Of all the cases cited by counsel on both sides, the case of General Motors Corporation v. Dodson, 47 Tenn. App. 438, 338 S.W.2d 655, (1960), and Kyker v. General Motors Corporation, 214 Tenn. 521, 381 S.W.2d 884 (1964), bear more similarity to the instant case than any other case cited by counsel.
However, there are some distinctions between the Dodson case and the Kyker case, and we perceive these distinctions to be as follows:
In the Dodson case the dealer was given a written express warranty issued by the manufacturer, General Motors, and the manufacturer required the dealer to give the ultimate purchaser the same identical express warranty which the manufacturer gave the dealer.
As a result of this fact, in the Dodson case, the Court of Appeals reached the following conclusion:
In the Dodson case the Court of Appeals found the following facts:
As distinguished from the facts in the Dodson case, the Supreme Court found that in the Kyker case the facts were as follows:
In the Dodson case it will be seen that the Court of Appeals found that the manufacturer, General Motors, manufactured and placed upon the general market an inherently dangerous product, to-wit; an automobile with defective brakes, whereas, in the Kyker case, there was no finding of fact that the manufacturer manufactured and placed upon the market any such inherently dangerous product.
In the instant case, there is no evidence that the manufacturer, Oliver Corporation, gave the dealer a written express warranty, or that the manufacturer required the dealer to give the ultimate purchaser any such warranty.
In the Kyker case the Supreme Court found that all of the evidence was to the effect that the sale in question was made by Sevier Motor Company, as an independent dealer and not as an agent of General Motors. There was no evidence General Motors was a contracting party in that case. In this respect, we think the facts in the instant case are the same as they were in the Kyker case. Furthermore, there is no evidence in this case that the manufacturer, Oliver Corporation, placed upon the market an inherently dangerous product, and therefore, we think the opinion in the Kyker case applies to the instant case.
In the Kyker case, the Court said the Uniform Sales of Goods Act did not apply for the following reason:
In the second count of their declaration the plaintiffs rely upon Section 47-1215 Tennessee Code Annotated, which is a part of the Uniform Sales of Goods Act. Since there is no evidence in the case at bar that Associated Farm and Home Store acted as agent for the Oliver Corporation,
The only proof of express warranty is contained in Exhibit 1 to cross-examination of the plaintiff, Green. (B. of E. p. 172). This warranty is as follows:
It will be seen that this warranty was made by the seller only and not by the manufacturer, Oliver Corporation, therefore, the Oliver Corporation would not be liable under this warranty.
The plaintiffs make no allegation of negligence in their declaration, but base their case solely upon breach of warranty.
Therefore, under the rules of law laid down in the Kyker case, we hold there was no issue of fact to be submitted to the jury, and the only issues in the case were questions of law to be decided by the court. These specific questions of law have been decided by our Supreme Court in the Kyker case.
We believe that if the opinion in the Kyker case had been published prior to the time the instant case was tried, the learned trial judge would have sustained the defendant's motion to direct a verdict in favor of the defendant, Oliver Corporation, upon the grounds there was no privity of contract between plaintiffs and the defendant, Oliver Corporation.
For the reasons hereinabove set forth, we find that the learned trial judge committed error by refusing to sustain the defendant's motion for a directed verdict, and, therefore, we sustain assignments of error numbered one and two, the judgment of the trial court is reversed and the case dismissed at the cost of defendants-in-error, who were the plaintiffs below.
SHRIVER and HUMPHREYS, JJ., concur.