Opinion
Decided February 8, 1927.
Sales — Breach of implied warranty that goods correspond to description — Sections 8394 and 8449 (1)(b), General Code — Special damages, but not general damages, must be specially pleaded, when — Evidence inadmissible when special damages not pleaded — After admissibility properly challenged, unnecessary to repeatedly challenge similar evidence — Implied warranty that metal doors corresponded to description — Cost of conforming doors with specifications, etc., not recoverable as general damages — Buyer cannot recover such expense unless contract provided therefor.
1. Action for breach of implied warranty that metal doors should correspond with description may be brought under Section 8449 (1)(b), General Code; sale of metal doors being sale by description within meaning of Section 8394.
2. Under Section 8449, General Code, authorizing action for breach of implied warranty that goods should correspond with description, general damages are recoverable without specially pleading them beyond allegations as to difference in values of goods as delivered and as represented, but special damages, which include other and further loss directly and naturally resulting from breach of warranty, must be specially pleaded.
3. In action for breach of implied warranty that metal doors should correspond with description in which pleader did not aver any special damages, evidence as to special damages was not admissible over objection and exception of defendant.
4. Where defendant at proper time promptly raised question as to admissibility of evidence supporting special damages for breach of implied warranty which were not pleaded, by objecting and excepting to its admission, it was not necessary for him to object and except to every question which involved evidence of similar character.
5. In action for breach of implied warranty that metal doors should correspond with description, excess cost of doors to fit frames, amounts expended for labor or material to make them conform to specifications, industrial insurance, overhead, and profit, held not recoverable as general damages.
6. As respects damages for breach of implied warranty, buyer of metal doors had no right to undertake to make frames correspond to specifications and then recover expense of so doing from seller except to extent that seller and buyer had made valid binding agreement that such expense should be paid by seller.
ERROR: Court of Appeals for Huron county.
Messrs. Parkhurst Vickery, and Messrs. Young Young, for plaintiff in error.
Mr. J.B. Coolidge, and Mr. Allen G. Aigler, for defendant in error.
Plaintiff in error, Klein Structural Steel Company, sold to the defendant in error, the John J. Pool Company, certain finishing and ornamental iron to be used in the construction of the Roosevelt School at Dayton, Ohio. Plaintiff in error was defendant in the court of common pleas, and the defendant in error was plaintiff. The first amended petition, filed in the court below, contained two causes of action, and in the main we are concerned with the second, which pleaded a cause of action for damages for the sale by the Structural Steel Company of metal door frames, which plaintiff below claimed were defective, and not according to contract, when delivered, in that they were warped and out of shape by reason of improper welding, and were not according to the description contained in the plans and specifications by which they were ordered, in that many of them were either too wide or too narrow; the amount of the variation in width being upwards of a quarter of an inch. Upon trial of the cause to a jury in the court below, the plaintiff obtained a verdict in its favor in the sum of $3,000, less $414.95, due upon the cross-petition, leaving a balance of $2,585.05. It was conceded upon trial that the plaintiff was indebted to the defendant for a part of the unpaid purchase price of material in the sum of $2,468.81. It follows that the amount of damages which the jury found in favor of the plaintiff totaled $5,053.86. Judgment was entered upon that verdict, and this proceeding in error is brought to reverse the judgment.
The defendant originally agreed to furnish the material purchased for the sum of $9,900. By subsequent agreement of the contracting parties the amount was reduced to $8,745. Pool accepted or kept the goods upon their delivery to him, f.o.b. cars, Dayton, and the second cause of action is one for damages under Section 8449 (1)(b), General Code, for a breach of an implied warranty that the goods should correspond with the description; the sale of the metal doors being a sale by description within the meaning of Section 8394, General Code. As the second cause of action is based upon Section 8449, it follows that the measure of damages will be governed by that section, from which we quote:
"6. The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.
"7. In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty."
These provisions include both general and special damages, and by their terms general damages would be measured by "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty." Special damages would include such other and further loss directly and naturally resulting in the ordinary course of events from the breach of the warranty. General damages for the breach of warranty resulting from the seller delivering defective goods are recoverable without specially pleading them beyond allegations as to such difference of values. On the other hand, special damages must be specially pleaded. 8 Ruling Case Law, 612, Section 157; 17 Corpus Juris, 1002, Section 306. The second cause of action contains an averment that the plaintiff had been damaged in the sum of $6,277.03, by reason of the fact that the materials delivered, on account of defects, were of less value to that amount than the materials contracted for, but the pleader did not aver any special damages. Consequently evidence as to special damages was not admissible over the objection and exception of the defendant. However, notwithstanding the fact that such objection was made and exception taken, the court permitted evidence tending to show that doors of special sizes were purchased elsewhere by the plaintiff at a cost of $2,937.64 over and above the amount which doors of standard size to fit the forms, if they had been according to description, would have cost. The court also admitted evidence of cost of labor performed by plaintiff to straighten the door frames, and evidence tending to show $121.26 expended for industrial insurance, and $178.90 for overhead, and also a profit of $196.80.
At the conclusion of all the evidence the defendant made a motion to strike out this evidence and excepted to the overruling thereof. The defendant at the proper time promptly raised the question as to the admissibility of such evidence by objecting and excepting to its admission, and it was not necessary for him to object and except to every question which involved evidence of a similar character. As the plaintiff did not plead any special damages, the court was bound to confine the evidence introduced relating to the measure of damages to the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. It is not meant that such evidence should have been confined to mere opinion evidence as to value, but any pertinent and material fact which bore upon those questions of value was competent. The excess cost of doors to fit frames, not according to specifications as to width, could not be an element of general damages; nor could the amounts expended for labor upon material to make it conform to specifications, or for industrial insurance, overhead, and profit, be proper items of recovery where special damages were not pleaded. Whether such matters would be proper items of recovery if specially pleaded, we do not now determine. The buyer had no right to undertake to make the frames correspond to specifications and then recover the expense of so doing from the seller, except to the extent that the seller and buyer had made a valid, binding agreement that such expense should be paid by the seller.
The trial court refused to give defendant's request to charge No. 4, which reads:
"The court instructs the jury to disregard entirely all evidence in this case as to payments by the John J. Pool Company to the United Metal Products Company of Canton, Ohio. The jury must not give any consideration thereto."
The presentation of this request raised the same question as to the excess cost of special sizes of doors, and the court erred in refusing to give it.
It is not properly within the province of this court at this time to indicate what allegations as to special damages may be properly incorporated in the plaintiff's pleading, nor what evidence would be admissible in support thereof. What might be said at this time in that respect would only be by way of obiter dictum.
The verdict is clearly and manifestly against the weight of the evidence, and the trial court erred in refusing a new trial upon that ground.
The judgment will be reversed, and the cause remanded for new trial.
Judgment reversed and cause remanded.
CULBERT and RICHARDS, JJ., concur.