
    Steel Sanitary Co. v. Pangborn Corp.
    (Decided October 17, 1930.)
    
      Messrs. Hart, Koehler, Blumenstiel <& Strong, for plaintiff in error.
    
      Messrs. Lynch, Day, Pontius & Lynch, for defendant in error.
   Lemert, J.

The parties in this case appear in an order the reverse of that in which they appeared in the common pleas court.

The record shows that early in March, 1927, one J. C. Cromwell, who later became associated with the Steel Sanitary Company in the capacity of general manager, had some correspondence with Pang-born Corporation about purchasing a sand-blast equipment to be used in connection with a new process for manufacturing bath tubs; also that in April, 1928, without any solicitation from Pangborn, Mr. Cromwell went to Hagerstown, Maryland, where Pangborn’s factory is located, and had some discussion with the officers of Pangborn about sand-blast equipment. On that occasion he was taken through Pangborn’s plant, and he gave particular attention to the operation of the sand-blast room and the dustarrester system in use in the Pangborn plant at the time of his visit.

The record discloses that Mr. Cromwell at that time examined all the equipment in operation while the machinery was in motion, and also all the conditions surrounding the place when the machinery was not in motion.

At Cromwell’s request Pangborn submitted a written proposal, by the terms of which Pangborn agreed to supply certain specifically described sand-blast equipment, so that the questions now before this court in this case all practically hinge upon the interpretation of the language of this proposal, which is as follows:

One type NF complete room sand-blast equipment installation for Steel Sanitary wear, consisting of steel plate room eighteen long by ten wide by 6.6 high, inside dimensions, complete with set of double panel, steel plate swinging, self-closing, self-sealing doors at each end of room; electric light fixtures, air inlet fixtures; ventilating ducts and room manifolding steel plate floor with round holes, and including steel supporters for floor; monorail supports and pit fittings. Two No. 1 type AU-S direct pressure hose sand-blast machines with single air valve control of air and abrasive including two pendant hose lines sand-blastt accessories and supports; two abrasive handling and reclaiming screens.for direct motor drive (purchaser, the Steel Sanitary Company, to furnish 3 H. P. 1200 NEPM motors) complete including two type BV-2 abrasive separators; two type IC-1 abrasive elevators; 2 type JF-2 abrasive conveyors; abrasive storage bins, etc.

For the above-described equipment Sanitary Steel agreed to pay to Pangborn $3,103. Pangborn further agreed to furnish, and Steel Sanitary agreed to purchase, the following equipment: One dust-exhauster arrester system for seven changes of air per minute within room above described and providing total suppression of dust, and extended sufficiently to provide for the installation of the fan adjacent thereto; No. 8 type CC cloth screen dust arrester with 60 hoppers (purchaser to furnish 1% H P— 1800 E P M motors) but exclusive of supports; No. 11 type KF slow speed dust exhauster for direct driving with motor belt drive including idler attachment and leather belt.

It was agreed that Pangborn should make delivery of the above-described equipment on board cars at Hagerstown, Maryland, and that shipment thereof should be made within six weeks after approval of the drawings, the terms of payment to be net cash within thirty days. This proposal Was accepted in writing by Steel Sanitary Company on August 8, 1928, over the signature of C. J. Eodman, who was president of the company. There were other terms in the contract relating to matters of payment, etc., the assembling and erection of machinery, etc., which are not of any importance for the purposes of this lawsuit.

After the equipment had been specially manufactured by Pangborn, and during the month of July, 1928, a notification was received from Steel Sanitary, stating, in substance, that some advice had been given to the officials of Steel Sanitary to the effect that sand-blasting should not be used in connection with the operations to be carried on by Steel Sanitary, and notice was given at the same time that Steel Sanitary might wish to make some changes in the equipment ordered.

The evidence shows that after the written proposal was submitted by Pangborn, notice was sent from the Hagerstown office to the Pittsburgh sales representative of Pangborn asking him to call upon Steel Sanitary and find out whether the proposal was satisfactory. On the 8th day of May, 1928, one Mr. Wolf called at the Steel Sanitary plant and had some conversation with Messrs. Eodman and Cromwell, particularly with Mr. Cromwell, and from an examination of the record concerning what took place at that time it is clear from the testimony that at no time were plans submitted to Pangborn on which the location of the various items of equipment were marked.

After receiving the letter dated July 8, 1928, in which Mr. Cromwell indicated that some one had advised the officers of Steel Sanitary that sand-blasting would not be satisfactory, a visit was made to the Packard Motor Car Company in Detroit, Michigan, where sand-blasting was being done on sheet metal. This visit, however, took place after the contract was entered into and after the equipment had been manufactured by Pangborn. The matter finally ended when Steel Sanitary refused to accept the equipment, although tender of the same was made by Pangborn, and various demands were made for payment, all of which plainly appears from the record.

This case was tried to a jury and a verdict was rendered in favor of Pangborn for the full amount of the purchase price.

Error is prosecuted to this court, and the principal ground of error complained of is that the court below committed prejudicial error in not permitting the defendant to amend its answer and cross-petition.

"Without entering into a lengthy discussion of the claimed errors in this case, suffice it to say that an examination of the record discloses that this action was based upon the contract hereinbefore referred to. The prayer of the petition is for judgment for the contract price. To this petition Steel Sanitary filed an answer and cross-petition. The answer contained two defenses, the first of which was a general denial, and the second of which was based upon what might be termed an implied warranty of fitness for a certain or particular purpose, and the cross-petition was based upon an implied warranty or quality of fitness for a particular purpose. So the questions present themselves:

1. Did the pleading sound in contract or tort? Or in other words, was it based upon an implied warranty of fitness for a special purpose, or upon fraud, etc.?

2. If upon an implied warranty of fitness for a particular purpose, could there be such an implied warranty in connection with a contract of the type involved in this case?

The court below held that under the settled law in Ohio there was no implied warranty of fitness in connection with a contract of the type involved in this case, and also decided that the answer and cross-petition were based npon an implied warranty, and not upon fraud; and the trial proceeded upon that theory.

Steel Sanitary asked leave to amend its answer and cross-petition so as to change the defense and cause of action from one in contract, based upon implied warranty, to one sounding in tort, based upon alleged fraud. The court refused to permit such an amendment, and we think properly so. We think this question has been fully settled by the Supreme Court of the United States in Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S., 510, 12 S. Ct., 46, 35 L. Ed., 837, which sets forth the following doctrine:

“When a contract is couched in terms which import a complete legal obligation, with no uncertainty as to the object, or extent of the engagement, it is (in the absence of fraud, accident or mistake,) conclusively to be presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing. Whether the written contract in this case fully expressed the terms of the agreement between the parties was a question for the court; and silence on a point that might have been embodied in it does not open the door to parol evidence in that regard.”

The court of Cuyahoga county, in Weber v. Nernst Lamp Co., 20 C. C. (N. S.), 279, 31 C. D., 300, also supports this theory and doctrine.

On the second proposition of error urged in this case, we find and note that the second defense set forth in Steel Sanitary’s answer, and the cause of action set forth in the cross-petition, were based upon an alleged implied warranty of fitness for a particular purpose, and under the settled rule in Ohio, and elsewhere, where the subject-matter involved in the contract is known, definite, and described, there is no such implied warranty of fitness for any particular purpose.

The question then here presents itself: Can an implied warranty be raised in connection with a contract for the manufacture and sale of machinery which is described in detail in the contract, as hereinbefore set forth? We note that the equipment to be furnished by Pangborn was described with great definiteness and particularity; that blueprints were submitted to Steel Sanitary on different occasions; and that.the final details of the equipment were worked out according to the suggestions of the officials of Steel Sanitary.

We therefore believe it to be the law of this state, and of other jurisdictions, that where articles which are the subject-matter of a contract are known, definite, and described, the purchaser assumes all responsibility for the use of such articles for any purpose which he intends them to be used, and this rule obtains notwithstanding the fact that he may have indicated to the seller the use to which the articles were to be put.

A very helpful authority on this proposition is to be found in 1 Williston on Sales (2d Ed.), Section 236. It has been held in Davis Calyx Drill Co. v. Mallory, (C. C. A.), 137 F., page 332, 69 L. R. A., 973, that no implied warranty of fitness arises out of a contract to make or supply a described and definite article, although the vendor knows that the vendee is purchasing it to accomplish a specific purpose, because the essence of the contract is the delivery of the specific articles and not the accomplishment of the purpose. In Leverette v. New London Ship & Engine Co., (C. C. A.), 24 F. (2d), 524, it is held that where the subject of a written contract of sale is a definite, described article, there is no implied warranty that it will accomplish the purpose for which the purchaser bought it, although such purpose is known to the seller.

So that on further' consideration we believe that the amendment to Pangborn’s petition, which was permitted by the trial court, was entirely proper, while the attempt made by the Steel Sanitary Company to change its defense and cause of action in its cross-petition, from one sounding in contract to one sounding in tort, was contrary to the amendment statute in this state and to the interpretations thereof by the various courts, and was therefore properly refused by the trial judge. The statute controlling such matters is Section 11363 of the G-eneral Code. It will be noticed by careful examination of this statute that by its express language it permits only such amendments as do not substantially change the claim or defense.

Our Supreme Court has very nicely treated this matter in Ohio Electric Ry. Co. v. U. S. Express Co., 105 Ohio St., 331, 137 N. E., 1.

Exhaustive and voluminous briefs have been presented by counsel in this case, and after examining them thoroughly we find that there was only one issue in this case raised by the pleadings and that was the matter of the interpretation of the contract.

Therefore, from a careful examination of all the record, the pleadings, and the bill of exceptions in this case, we find and believe that the court below was unusually careful in determining the issue raised by the pleadings, and that the court was liberal to Steel Sanitary in his final interpretation of the terms of the contract and in the admission and exclusion of testimony bearing upon the meaning and language of the contract.

We find and believe from an'examination of the whole of the record that both parties in this lawsuit had a fair and square trial and that there is no prejudicial error therein. The finding and judgment of the court below will be, and the same is hereby, affirmed.

Judgment affirmed.

Sherick, J., and Justice, J., of the Third Appellate District, sitting by designation, concur.  