Sensabaugh v. Morgan Bros. Farm Supply, Inc.

Henderson, J., delivered the opinion of the Court. Morgan Brothers Farm Supply, Inc., sued the appellant, Sensabaugh, a contractor, for $11,867.63, representing the balance of the purchase price of two pieces of construction equipment, a bulldozer and a loader, and charges for repairs thereto. The defendant filed general issue pleas and a set-off and counterclaim of $8,607.37. After trial before the court without a jury, the court entered judgment for Morgan in the sum of $10,878.63, and Sensabaugh appeals.

In February, 1957, Morgan became an authorized distributor of equipment manufactured by the J. I. Case Company. On May 2, 1957, it sold a bulldozer to Sensabaugh who signed a conditional sales contract in the form of a note payable to Morgan or order in thirty-six monthly installments. The note was assigned with recourse to J. I. Case Credit Company. It contained no reference to any warranties.

James Morgan, the President of Morgan, testified that the bulldozer was delivered a few days later, and the purchaser was handed a manual of instructions, containing a warranty by J. I. Case Company printed on the back of the manual. This warranty was “for six months, or five hundred hours of normal usage (whichever terminates first), after date of sale * * * except that the terramatic transmission is warranted for a period of one year or one thousand hours of normal usage * * *. There is no express, implied or statutory warranty by J. I. Case Company other than herein set forth, and no dealer, Company representative or other person is authorized to make any warranty on behalf of J. I. Case Company other than or different from the terms hereof.” ⁵⁹⁵ The loader was purchased November 10, 1957, and a similar note, containing the terms of the conditional sales contract, was signed by Sensabaugh. James Morgan testified that in this case the manual and warranty were not delivered until several days after delivery of the loader.

He admitted that in neither case was the warranty filled out or signed by J. I. Case Company or anyone else. It did not identify any particular purchaser or machine. “It wasn’t intended to be executed.” He testified that Sensabaugh became in default in his payments and on June 3, 1959, both pieces of equipment were sold at public auction and bought in by him. Suit was for the balance, plus $1,128.93 for repairs. This did not include certain repairs made without charge during the period of six months following each sale.

James Morgan testified that Sensabaugh had asked about warranties prior to the first sale, and he told him they were “500 hours or six months on the main tractor and 1000 hours or one year on the transmission.” He admitted telling Sensabaugh, “[W]e had a machine just as good and it would be just as good as our competitive makes.” He knew the type of business Sensabaugh was in and had seen some of his jobs. He recommended the machines to him. Specifically, he told him the bulldozer “would perform with a TD9, a D4 or any tractor equivalent in size and horsepower.” Sensabaugh testified that he was doing excavation work early in 1957 when James Morgan called on him and told him he had just been made a Case representative and they had some good machines that were something new on the market and would outperform any comparable machine. James Morgan said, “[I]t would hold up better because it had a torque converter, an all hydraulic machine, and you would have less trouble because you would have less breakage.” He started having trouble with the bulldozer a few days after it was delivered.

Mr. Morgan told him that he and the manufacturer would stand behind the machine. The hydraulic braking system “went out on it.” The track frame, oil filter, brackets and other parts had to be replaced. Mr. Morgan told him not to worry, “[I]t’s something new in the way the machine operates, and * * * we are going to take care of them * * * ⁵⁹⁶ keep them fixed up.” It was the same situation as to the other machine. He could not keep them working and operated them less than one thousand hours during a period when they should have been worked three thousand hours.

He finally returned both machines. The installment payments were not in default at that time. Mr. Morgan had promised to replace the machines or rebuild them but did not do so. Mr. Morgan told him the machine was “one of the first ones that came out of the production line.” “We will give you a new machine which is a heavier model.” He never did so.

The witness produced time sheets and records to show the various breakdowns and repairs. His testimony was corroborated by the testimony of a number of other witnesses. He also produced some correspondence with the J. I. Case Company, in which he complained of the machines’ performance ever since the time of their purchase, and a reply in which the writer expressed hope of a “satisfactory solution.” The trial court took the view that the purchaser was