May Oil Burner Corp. v. Munger

⁶⁰⁸ Offutt, J., delivered the opinion of the Court. On or about March 25th, 1921, the May'Oil Burner Corporation, the appellant, entered into a written contract with Mrs. 0. A. Monger, the appellee, under which in consideration of $1,658 it agreed to install one May Automatic Oil Burner in each of two boilers located in the Peabody apartment house, which she owned, at Thirtieth and Calvert Streets-in Baltimore City. That contract in part provided that: “It is understood that purchaser will have boiler, flues, and chimney clean, same to contain no obstruction or opening, and chimney he of sufficient capacity, as we assume no responsibility for defects in the heating plant or chimney, or for any damages resulting therefrom or for any consequential damages due to the installation or operation of the burner. “It is further understood that title to the burner or equipment will not pass to- the purchaser until the same has been fully paid for as stipulated herein; and that there are no understandings, verbal or otherwise, pertaining to this proposal which are not set down herein. “Guarantee: The Quiet May Automatic Oil Burner is guaranteed -against any imperfection in materials and workmanship for one year, and to heat your furnace to its normal rated capacity as determined by standard heating methods. “We will furnish, deliver and install the above described equipment complete with the necessary pipe, valves and fittings, electrical connections and automatic controls for the sum of one thousand six hundred and fifty-eight dollars ($1,658.00). “Terms of Payment: $200.00 cash with order, $200.00' when tank and pipe work are installed, balance upon completion of installation.

A cash discount of 5% will be allowed on the above quotation if paid in full upon completion of installation, or balance may he paid by notes in twelve (12) equal monthly payments. “This proposal when signed by purchaser and approved by a duly authorized officer of the corporation ⁶⁰⁹ will constitute a contract for the installation of the burner described herein.” But the terms of payment stated in the body of the contract were modified by the following supplementary clause written at the foot of it: “$100.00 when installed, note $400.00 due Nov. 1st, 1927, balance 12 monthly notes $96.50, 1st note due Dec. 1st, 1927. Or less 5% of contract price if paid in full on or before Nov. 1st, 1927. The two burners were installed and finally inspected on October 20th, 1927, and from that time until February, 1929, when they wore removed from the boilers, they appear to have been used to heat the building in which they were installed. No part of the purchase price for the burners was paid, nor were the notes referred to in the supplementary clause of the contract ever delivered.

But shortly after they were installed a dispute arose between the purchaser and the seller as to whether the burners as installed complied with the requirements of the contract, and on April 24th, 1928, the May Oil Burner Corporation, the appellant, brought an action in assumpsit against Mrs. Munger, the appellee, in the Superior Court of Baltimore City to recover the purchase price stipulated in the contract. Both before and after that date there were negotiations between the parties looking to the correction of alleged defects in the burners, but these attempts to adjust their differences were unsuccessful, and eventually the burners were removed from tbe boilers, and this action proceeded to a trial, which resulted in a verdict and judgment for the defendant, and from that judgment this appeal was taken. The record submits some sixty-three exceptions, sixty-two to rulings of the trial court on questions of evidence, and one to its rulings on the prayers. The appellant’s contention in effect is that it sold the appellee two oil burners, known and described by a recognized trade name, to wit: “May Automatic Oil Burners,” under a wuitten contract of sale which contained a warranty guar ⁶¹⁰ anteeing them against imperfections in materials and 'workmanship for one year, and guaranteeing that they would heat the furnace in which they were to- be installed to its “normal rated capacity as determined by standard heating methods”; that it delivered the burners in substantial compliance with its contract and that the appellee in fact accepted them, but that whether she accepted them or not, since they were installed in compliance with the terms of the contract she became liable for the purchase price thereof when they were actually installed in the boilers.

The appellee’s contention appears to be that the written contract between the parties should be construed in the light of the circumstances under which it was made. That so construed the appellant not only warranted the burners free from imperfections of material or workmanship, but warranted that they would heat the furnace in which the boilers were so as to produce steam in the radiators installed in said property, that they failed to do that; that such failure was a breach of the warranty, and that for that reason, as well as because the burners as installed were defective in material and workmanship, she was entitled to rescind the contract. At the close of the' whole case Mrs. Munger, the defendant, attempted to set out her theory of the law in four prayers, of which the first was refused and the others granted. That ruling, which is the subject of the sixty-third exception, erroneously numbered fifty-nine, will be first considered.

The plaintiff offered no prayer, so that the three prayers granted at the request of the defendant were the only instructions as to the law of the case given to the jury. By the defendant’s second prayer the jury were told that if they found the execution of the contract “as mentioned in the evidence, and if the jury further find that the said Quiet May Automatic Burners so installed in said property were imperfect in materials and workmanship, and that such imperfection in materials and workmanship was reported by the defendant to the plaintiff, but the plaintiff did not remedy the same, then the plaintiff is not entitled to recover in this action.” ⁶¹¹ By her third prayer they were instructed that if they found that the parties entered into contract “offered in evidence,” and that the burners mentioned therein were installed in the heating plant in appellee’s property at the comer of Calvert and Thirtieth streets in Baltimore City, and “that the defendant purchased said oil burners for the purpose of heating boilers located in said property so as to produce steam ii) the radiators installed in said property under all normal conditions of winter weather, and that the defendant relied upon the skill and judgment of the plaintiff in making said purchase; and if the jury further find that the plaintiff knew the purpose for which said oil burners were purchased and knew- that the defendant relied upon the skill and judgment of the plaintiff; and if the jury also find that the said Quiet May Automatic Oil Burners so installed in said property were not reasonably fit for the uses and purposes for which they were purchased, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must he for the defendant.” Both of these prayers go to a recovery and direct a verdict for the defendant upon a finding of the facts postulated in them. In effect therefore they excluded from the consideration of the jury all facts other than those supposed in them, and if there was in the case legally sufficient evidence of other facts, the effect of which would have been to so far1 nullify or modify the facts supposed, as to permit a recovery,, the prayers were erroneous and should have been refused.. Friedman v. Handler Creamery Co., 158 Md. 131 .

Applying that test to these two prayers, it appears that there is one defect common to both, and that is that they ignored evidence from which the jury could have found that the defendant, with full knowledge of the facts, accepted the burners as installed, and that the property in them passed to* her. And since she could not at the same time ratify and rescind the contract, if in fact she did ratify it by accepting the burners with full knowledge of their alleged defects, she-could not thereafter elect to rescind it on the ground that such defects constituted a breach of the warranty contained ⁶¹² in it. Code, art.. 83, sec. 90, sub-secs. 2, 3 (Uniform Sales Act, see. 69, sub-secs. 2 and 3). But her remedy lay either in setting up against the seller in this action any breach of warranty by way of recoupment, or in extinction of the purchase price, o'r in bringing a separate action to recover such damage as she may have suffered as a result of the breach, if in fact there had been a breach of the warranty.

Code, art. 83, sec. 90; Mississippi Shipbuilding Corp. v. Lever Bros. Co., 237 N. Y. 1 ; Berman v. Littauer, 141 Md. 649 ; Roland v. Markman, 207 Iowa, 1322 . So that the question finally is, Was there in the case evidence legally sufficient to show that defendant accepted the burners with knowledge of their supposed defects ? Since the effect of these prayers was that of a demurrer to the evidence relating to the issue of acceptance or not, the truth of all evidence tending to prove acceptance, together with inferences naturally and legitimately deducible therefrom, will be assumed.

Friedman v. Hendler Creamery Co., supra; Home Credit Co. v. Fouch, 155 Md. 396 ; Atlas Realty Co. v. Galt, 153 Md. 591 ; Security Storage & Trust Co. v. Denys, 119 Md. 347 . There was offered at the trial evidence tending to prove these facts, which for convenience will be stated in narrative form. The contract to1 which reference has been made provided for the installation of two Automatic May Oil Burners complete with fuel oil storage tank, a therm.ostat, and other appurtenant equipment required for the operation of the burners in the two boilers which were at the time used to heat the apartment house. Included in the purchase price of $1,658 was emergency service fox the first ninety days of the first heating season, which was defined as extending from October first to May first.

The burners were installed, inspected, and found to be operating satisfactorily on October 20th, 1927, by Bernard II. Dow, appellant’s installation engineer. Within two or three months after that, Fulton E. Yewell, a brother of Mrs. Monger, who managed the apartment house as her agent, complained to Dow that one of the apartments in the building “was not heating.” Dow inspected ⁶¹³ it, found a valve in one of the radiators in it looked, adjusted that, and -thereafter the apartment was heated satisfactorily. On January 20th, 1928, an explosion occurred in the chimney to which the boilers were connected, which caused some damage to the boilers.

Dow recommended certain necessary repairs, and after they had been made the burners “continued to operate satisfactorily.” In April, 1928, a hre occurred in the boiler room, which substantially damaged the burners and the equipment connected with them, so as to prevent their use, and early in the following October the appellant sent its workmen to repair the damage, but after they had made some temporary repairs they were stopped by Mr. Yewell and ordered from the premises. After that Yewell employed the Snowman Electric Company, which repaired the wiring connected with the burners, and installed a different thermostat; in November, 1928, he had the nozzle on one of the burners changed, and during that fall he had the burners adjusted by a steamfitter, and he continued to use the burners to heat the apartment house until February, 1929, when they were removed from the boilers. After their removal the furnace grates, which had been in the boilers before the oil burners wrere installed, and which had been removed, were replaced, and thereafter coal was used to heat the boilers. No payments were ever made on account of the purchase price of the burners.

Yewell, Mrs. Hunger’s agent, said that the initial payment was not made because the thermostat had not been installed, and that by the time it was installed the operation of the burners had been so unsatisfactory that “they decided not to make the payment at all until they were corrected.” But notwithstanding that conclusion, appellee continued to use the burners, and while she, through her agent, complained that they were not heating the building satisfactorily, it does not appear that she ever requested the appellant to remove them prior to xipril 21st, 1928, when through her counsel she wrote to the appellant “that the oil burners installed in those apartments at Calvert and Thirtieth streets last year have been entirely unsatisfactory. They have not ⁶¹⁴ heated the apartments properly. They have not heated the apartments sufficiently in cold weather. The heat has been irregular.

The thermostats have not functioned properly. The operation of these burners has caused an explosion in the cellar and constitutes a danger to the premises. We therefore notify you that you have breached your contract and we call upon you to remove the burners from the premises.” Appellant denied that the explosion referred to in the letter was caused by any defect in the burners, but attributed it to some defect in the chimney or flue. And notwithstanding the letter, appellee continued, as has been stated, to use the burners until the following February, and it does not appear that she made any other or further demand that they be removed from the premises.

Her agent stated" “that the last he saw of the May Oil Burners, they were up in the basement of the Peabody Apartments not in use; that there was notice given to the May Oil Burner Company to take them out; that Mr. Morrow notified them; that he himself did not.” But it is not clear that, when he said “there was notice given to the May Oil Burner Company to take them out,” he referred to the letter written by his counsel or to some other occasion. Many of these facts were disputed, and on behalf of the appellee there was evidence affecting the value of others. But the determination of the disputed facts, and the credibility of appellee’s evidence as to other facts tending to modify or nullify them, was a question to be decided by the jury upon all the evidence before them, and for the purpose of the immediate question the facts as we have stated them will be taken as sufficiently proved. Thus regarded, they were in our opinion legally sufficient to warrant the inference that the appellee accepted