White Automobile Co. v. Dorsey

Burke, J., delivered the opinion of the Court. On the sixteenth day of June, 1911, William C. Dorsey brought suit in the Baltimore City Count against the White Company and the White Automobile Company. The last-named defendant is a corporation. Both defendants filed the general issue pleas, and the White Company filed a further plea denying its incorporation.

Issue was joined upon the pleas of the White Automobile Company. Upon the suggestion and affidavit of the defendants, the case was removed to the Court of Common Pleas for trial. The trial in that Court began on the 28th of February, 1912, and on the 9th day of March the jury rendered a verdict in favor of the plaintiff for two thousand dollars, and from the judgment' entered on that verdict the defendant has brought this appeal. ²⁵⁴ The record is voluminous, and presents for consideration seventy-five bills of exception taken by the defendant during the course of the trial. A clear statement of the issues raised by the pleadings and of the general purport and effect of the evidence will dispense with a discussion of each exception, as many of these exceptions present precisely the same question, and may, therefore, be disposed of by such legal principles as we shall determine to be applicable to the case.

The declaration, as originally filed, contained three common counts, viz.: 1. Eor money paid by the plaintiff for the defendants at their request; 2. And for money had and received by the defendants for the use of the plaintiff; 3. And for money found to be due from the defendants to the plaintiff on accounts stated between them.

There was also a special count. This count was, by leave of the Court, withdrawn by the plaintiff, and, therefore, need not be considered. During the trial, upon leave granted, another special count was filed, which is called in the record the sixth count, although it is really the fifth count, and will be so referred to in this opinion. This count alleged that the defendants “on or about the 26th day of May, 1910, offered to sell to the plaintiff a motor car or automobile, known as the “White Steamer,” model 00, 1910, at and for the sum of two thousand dollars, and as an inducement to said plaintiff to make said purchase, said defendants by their servants and agents, then and there represented and warranted to the said plaintiff that said automobile was sound, free from defects in workmanship, and materials, and would be satisfactory to the plaintiff, and that said defendants would heep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase It further alleged that the plaintiff, relying upon said i’epresentations and believing them to be true, agreed to purchase and did purchase said automobile and paid therefor the sum of two thousand dollars, and received the ²⁵⁵ machine and undertook to use it.

The count then alleged the breach of the contract on the part of the defendants in these words: “Said plaintiff found that said automobile was not in sound condition, free from defects in workmanship and material, hut, on the contrary, was unsound and defective as to workmanship and material, and would not and could not be run or operated as an automobile in sound condition could and would he run, and constantly required repairs, and was constantly out of order and out of repair, which facts were made known to the defendants, but that said defendants failed and refused to put said car in good order and repair, etc.” After the fifth special count had been filed the defendants demurred to the whole declaration and to each count thereof, and the Court overruled the demurrer. They then filed a demand for a hill of particulars which the Court denied. The pleas filed with the original declaration were re-filed to the fifth count, and issue was joined thereon. During the progress of the trial judgment was entered in favor of the White Company, and the trial proceeded against the White Automobile Company.

The appellant renewed its demand for a hill of particulars, which the Court again denied. The testimony, appearing in the record, was then offered by the respective parties upon the issues of fact raised by the pleadings. We will first consider the questions of law raised by the demurrer and the demands for a hill of particulars, and these are: Eirst, Was the fifth count a good count? Second, Was the appellant entitled as a matter of right, under the circumstances stated, to a hill of particulars ?

As to the first question. As the declaration contained the three common counts, each of which was good, and one special count, there was no error committed in overruling the demurrer to the whole declaration. It is well settled that where a declaration contains several counts, some of which are good and some bad, a demurrer to the whole declaration will be overruled. In Willing v. Bozman, 52 ²⁵⁶ Md. 44, the familiar and long settled rule was announced that a defendant will not be entitled to judgment on demurrer to the whole declaration unless all the counts thereof were bad.

The demurrer to each of the common counts was properly overruled, as each of those counts was good. But it should have been sustained as to the fifth count, as it clearly offended against the rule which forbids duplicity in pleading. The count combines two’ distinct causes of action; first, a breach of the express warranty that the automobile “was sound, free from defects in workmanship and material, etc,”; and secondly, a breach of a contract on the part of the defendants “to keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase.” It was proper for the plaintiff to have embodied in his declaration in separate counts both causes of action; but their combination in one count was a typical example of duplicity in pleading, and rendered this count bad, and, therefore, the demurrer to it should have been sustained. Chitty on Pleadings, 225; Poe on Pleadings, Vol. 1, sec. 733; Stearns v. The State, 81 Md. 341 ; State v. McNay, 100 Md. 625 .

As to the second question: The general rule is that in cases where the defendant is entitled to demand the particulars of the plaintiff’s claim he should make the demand before pleading. “By pleading to the declaration,” says Mr. Poe in his work on Practice, sec. 120, “it is ordinarily held that he loses or waives his right to exact the particulars, for by the very act of pleading he virtually admits that he has sufficient knowledge of the details of the plaintiff’s cause of action.” The record sho-ivs that the appellant filed the general issue pleas on the 15th of July, 1911, and the demand for a bill of particulars was not made until the 29th of February, 1912, after the trial had begun. So far at least as the common counts are concerned, there is nothing in the record to prevent the application of the general rule stated by Mr. ²⁵⁷ Poe, and, upon the authority of Black v. Woodrow, 39 Md. 194 , the appellant was not entitled to a bill of particulars under the fifth count. The sixth count in that case.alleged “that the appellees and appellant agreed together that the former would build for the latter a frame house on his farm, in the manner and according to the specifications stated and set forth, and that the appellees in pursuance of the contract, commenced and progressed in the work of erecting such house, and expended large amounts of money in providing materials therefor; and although the appellees were then and there ready and willing and anxious to comply with the contract in every particular, and to build the house in every respect in exact accordance with the contract, they were prevented from so doing by the express orders of the appellant, whereby they sustained damage to the amount of six thousand dollars.” Speaking of a demand of the defendant for the particulars of the plaintiff’s claim under that count, Judge Advey said: “But as to the sixth count, the particulars were unnecessary, and were not demandable, as the count itself was special, setting out fully the contract, and alleging as a breach the appellant’s prevention of performance of the contract by the appellees, and consequent damage sustained by them. The count, therefore, furnished sufficient notice of the nature and character of the claim, and of the evidence required to support it.

This is all that a defendant has a right to demand, in regard to the certainty of the plaintiff’s claim.” AYe now pass to the consideration of seventy-three bills of exception taken by the appellant to rulings made by the trial Coind upon questions of evidence. As many of these exceptions relate to the law of warranty, the measure of damages in cases of breach of warranty, the competency of certain witnesses to- express opinions as h> alleged mechanical and structural defects in the automobile known as the AAdiite Steamer Model 00 1910, and to the admission of testimony alleged to be irrelevant, some general principles, ²⁵⁸ bearing upon tbe precise questions presented on tbe branch of the case, will be stated. First.Qlt was stated in Osgood v. Lewis, 2 H. & G. 496 , a case which has been consistently followed in this Court, that “to create an express warranty, the word “warrant” need not be used; nor is any precise form of expression required. Any affirmation of tbe quality or condition of tbe thing sold (not uttered as a matter of opinion or belief) made by tbe seller at tbe time of sale, for tbe purpose of assuring the buyer of tbe truth of tbe fact affirmed, and inducing him to make tbe purchase, if so received and relied on by tbe purchaser, is an express warranty.” Second.

Upon a breach of tbe warranty two remedies are opened to tbe buyer; first, be may return tbe chattel, if delivered, within a reasonable time after discovering tbe breach; and recover back in assumpsit on tbe common counts tbe amount paid; or, secondly, be may retain tbe chattel and sue upon the contract for damages resulting from tbe breach of tbe warranty. Third. In a suit for breach of warranty tbe measure of damages ordinarily is, tbe difference between tbe value of tbe article with tbe defect warranted against and tbe value it would have borne without that defect, and tbe price paid is strong prima facie evidence of its value if it bad been sound, or corresponded with tbe warranty. Hyatt v. Boyle, 5 G. & J. 111 ; Franklin v. Long, 7 G. & J. 407 ; Clements v. Smith, 9 G. 156; Lane v. Lantz, 27 Md. 216 ; Miller v. Grove, 18 Md. 242 ; Horn v. Buck, 48 Md. 358 ; Horner v. Parkhurst, 71 Md. 116 .

Four: Tbe general rule as to tbe admissibility of expert-evidence is that persons having technical and peculiar knowledge on certain subjects are allowed to give their opinion when tbe question involved is such that tbe jurors are incompetent to draw their own conclusions from tbe facts without tbe aid of such evidence. Harris v. Consolidation Coal Company, 111 Md. 209 ; Dashiell v. Griffith, 84 Md. 377 ; Anne Arundel County v. Stansbury, 107 Md. 210 . ²⁵⁹ Eive: The evidence must correspond with the allegations, and be confined to the issues of fact made by the pleadings. Any circumstances that may afford a fair and reasonable presumption of the fact to be proved are to be received and left to the consideration of the jury, who are to determine upon their precise force and effect; and whether they are sufficiently satisfactory to warrant them in finding any of the facts in issue; but collateral facts which are essentially misleading should not be received in evidence. Brooke v. Winters, 39 Md. 510 ; 11 Am. &Eng.

Enc. of Law, 501-503. The rulings on the admissibility of evidence will be tested by these principles. The fifth count declared on an express warranty of the automobile by the appellant. It was essential to the plaintiff’s right to recover that he establish by competent evidence to the satisfaction of the jury some one of the material representations alleged.

Evidence of other and different warranties were manifestly inadmissible under the pleadings. The car was sold by James McO. Primrose, a sales agent of the appellant, and the.contract of purchase was signed on the 27th day of May, 1910. The appellee paid five hundred dollars cash on account of the purchase price, and gave to the appellant his three promissory notes each for the sum of five hundred dollars, payable in sixty, ninety and one hundred and twenty days respectively from their date.

The car was delivered to him on the following day, and he retained possession of it and used it when in running condition until December, 1910, at which time he demanded that the appellant take the car back and return the purchase money. This was declined. The appellee left the car at the appellant’s garage and instituted this suit. He paid the three promissory notes as they matured, although as he testified he became aware of the defects in the car within a few days after it came into his possession, and he gave a long and detailed account of the many difficulties and troubles he had encountered in the operation of the car.

But he did not repudiate ²⁶⁰ tlie contract and return the car within a reasonable time after he had discovered the defects which he complained of; but kept it for at least six months thereafter. Upon the ■facts in evidence showing full knowledge by the appellee of the alleged defects, and the retention and use of the car by him for such a length of time after he had acquired such knowledge, we have no difficulty in holding that he had abandoned his right to rescind the contract, and, therefore, the only affirmative remedy open to him was a suit for damages for breach of the warranty. It is undoubtedly true that the plaintiff had much trouble with the car; but whether this was due to the causes alleged in the fifth count of the narr., or whether it was due to his own carelessness in the operation of the machine, were vital questions in the case, and upon them there was a great conflict in the evidence. The appellee’s contention before the jury was that the failure of the machine to give satisfaction was due to mechanical and structural defects; the appellant contended that no such defects existed; but that the difficulties encountered by the plaintiff resulted from his own negligence in the management and operation of the car.

It is apparent to any one who reads the record that no witness who did not possess some technical knowledge of mechanical engineering, or practical experience in the construction or repair work of automobiles was competent to give his opinion to the jury as to the structural defects in this machine. This is clear from the testimony which describes the mechanical arrangements of the car and the functions to be performed by its various parts. This testimony showed that the arrangement of the car was based upon approved principles of mechanical engineering and was highly technical in its character. A full description of the car and the principles upon which it was constructed were given by Bolla 0.

Carpenter, a professor of experimental engineering in Cornell University, and George D. Carpenter, an experienced mechanical ²⁶¹ engineer, who had charge of the actual construction of this type and model of White Steamers. Professor Carpenter, speaking of the changes which had been made in the White Steamer, said: Q. In case of change in the design of motors in the machine from year to year, what part, if any,