Shay v. Joseph

Prescott, J., delivered the opinion of the Court. This is an appeal by the defendants below from a judgment in favor of the appellee, awarded by a jury as damages alleged to have been sustained by appellee’s woodworking company as a result of the use of an adhesive product manufactured and sold by the appellants, and which the appellee contended failed to live up to warranties made by the appellants. The appellants denied any warranty and contended that the purchase was based solely on the skill and judgment of the purchaser and as a result of the appellee’s company’s pretesting of the product. The case turns upon whether there was sufficient evidence adduced by the plaintiff to submit the question of an implied warranty of the product sold by the defendants to the jury, ²⁷⁵ after the defendants had moved for a directed verdict in their favor.

Code (1957), Article 83, Section 33, in pertinent part, reads as follows: “Subject to the provisions of this subtitle and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: “(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. “(6) An express warranty or condition does not negative a warranty or condition implied under this subtitle, unless inconsistent therewith.” Little need be added in explanation of the above. The terms of the statute are clear and unambiguous and are its best expositor. In the case at bar, the sellers admit they knew the purpose for which the glue was bought; consequently, the issue narrows to the sufficiency of the evidence as to whether the purchaser relied upon the sellers’ skill and judgment, with the burden of proof upon the plaintiff. 1 U. L- A. Sales, Section 15, note 352. In making this determination, the evidence must be considered in the light most favorable to the plaintiff.

The case consumed five days in trial and the testimony is quite voluminous. However, we shall be as brief as possible in fairly presenting the questions posed. The appellants are co-partners who for ten years have owned and operated a small plant manufacturing glue and other adhesives at Owings Mills in Baltimore County. Shay is the chemist who prepares the products in the plant; Kelbaugh is the salesman who calls upon the trade.

On July 12, ²⁷⁶ 1954, Kelbaugh called on appellee’s company [Eastern] in an effort to sell glue, leaving a sample of a slow-drying type of glue for testing, as was his normal procedure. Through the weeks and months that followed, Kelbaugh continued to call back on Eastern and received reports that the sample was still being tested. On November 22, 1954, Kelbaugh again called, this time talking to one Edmund Wilson, an engineer and purchasing agent, who inquired as to whether Kelbaugh’s line included a contact or quick-drying glue. Whereupon, Kelbaugh went to his car and got a sample which he left for testing.

Before leaving he took a piece of wood and a piece of plastic and demonstrated the method of applying the glue. He left this with Eastern as well as the sample of the glue. The appellant makes no claim that the glue purchased did not meet the standards of the samples, but relies entirely upon the alleged warranties. After testing the slow-drying glue since about July 12 and the contact glue from November 22, Eastern purchased some of both from the appellants in the latter part of December, 1954.

The order included ten gallons of the contact glue at a purchase price of $3.00 per gallon. The purpose for which the glue was obtained was to adhere a veneer edging such as formica to a table top or to an edging. The plaintiff contends the glue was not reasonably fit for the purpose for which it was purchased in that, on many occasions when it was used, the pieces came apart or disintegrated in about thirty days. The only testimony that the plaintiff refers to in his brief to sustain the fact that Eastern relied upon the seller’s skill and judgment in making the purchase, and not upon its own tests, is that of the witness Wilson, Eastern’s production engineer, and the defendant, Kelbaugh.

This testimony is quite short; so, it will be set out in full. Wilson testified that, when the question of contact glue was first mentioned, the conversation between him and Kelbaugh was as follows: “I said, Do you have a contact cement which can be used for applying the edge veneering? “Q. And what was Mr. Kelbaugh’s reply, if any? A. He said, Yes, I think we can help you, and I will bring in a sample for you to try. ²⁷⁷ “Q. Did you in any way rely on Mr. Kelbaugh’s statements? A. Yes sir.” And Kelbaugh’s version of the same