Denny, Peter Thomas

Glasser, Martin Joseph

Lobert, John Charles

English

The Research Repository @ WVU (West Virginia University)

Manuscript 3325Sales--Warranties Under the Uniform CommercialCodePeter Thomas DennyMartin Joseph GlasserJohn Charles LobertFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Commercial Law Commons, and the Secured Transactions CommonsWEST VIRGINIA LAW REVIEWbeing protection from a void injunction issued without jurisdiction,and the State's interest being preventing any of its courts fromacting without jurisdiction. Thus the State may properly instituteand maintain a prohibition proceeding to protect the rights ofan unincorporated association such as P. State ex rel. Glass BottleBlowers Ass'n of the United States & Canada v. Silver, 155 S.E.2d564 (W. Va. 1967).In West Virginia the only unincorporated associations presentlysubject to suit under a common name are a cooperative agriculturalmarketing or credit association, W. VA. CODE ch. 19, art. 4, § 4(Michie 1966), and a common carrier, W. VA. CODE ch. 56, art.3, § 15 (Michie 1966). All other unincorporated associations fallwithin the common law rule, that since they have no legal entitydistinct from that of their members they may not sue or be suedin the organization's own name.Sales-Warranties Under the Uniform Commercial CodeD, for the purpose of making coke, bought coal from one of twopiles exhibited near the mouth of P's newly opened mine. P hadshown D a sample with a low percentage of ash, suited for coke-making, taken from another part of the mine. At D's request Phad the coal cleaned and shipped. After the delivery D told P tostop loading coal until an analysis could be made to determine ashcontent, but after looking at the same coal pile, allowed three moretruckloads to be delivered. An analysis of the coal later showedthat the ash content was too high for coke making, and D refusedto pay for the coal. In an action to recover the value, the juryreturned a verdict for P, and judgment was entered thereon. Held,affirmed. There was no express or implied warranty of merchanti-bility, an issue properly determined by the jury. D's inspection ofthe coal before delivery excluded any warranties under W. VA.CODE ch. 46, art. 2, § 316 (Michie 1966). Sylvia Coal Co. v.Mercury Coal and Coke Co., 156 S.E.2d 1 (W. Va. 1967).As the court points out in its opinion, this is one of the first casesin West Virginia involving provisions of the Uniform CommercialCode as embodied in W. VA. CODE ch. 46 (Michie 1966). In thissame area of warranties under the Uniform Commercial Code, seeShreve v. Casto Trailer Sales, Inc., 150 W. Va. 669, 149 S.E.2d 238(1966).[Vol. 701Denny et al.: Sales--Warranties Under the Uniform Commercial CodePublished by The Research Repository @ WVU,ABSTRACTSThe decision in the principal case rested on two fact determina-tions made by the jury: that even though P exhibited the sample,he did not represent it as coming from the coal piles near the mine,and that D relied on his own examination of the coal rather thanon any statements or representations made by P who had no ex-perience in the sale of coal for any purpose. With these factsdetermined, the Uniform Commercial Code, W. VA. CoDE ch. 46,art. 2, § 316 (Michie 1966), clearly excludes any possibility ofexpress or implied warranties.Tort Liability-Turnpike CommissionP's decedents were killed in an accident involving two vehicleson a state turnpike. Conflicting evidence was introduced at thetrial concerning the icy condition of the highway at the time ofthe accident. On appeal, the issue arose as to the turnpike'sliability for failure to keep the highway free of ice and snow. Held,W. VA. CODE ch. 17, art. 10, § 17 (Michie 1966), and W. VA. CODEch. 17, art. 10, § 18 (Michie 1966) changed the common law andcreated a basis of liability which did not exist at common law.Section 18 reads in part, "Any person injured by reason of a turn-pike, road or bridge.., being out of repair may recover all dam-ages . . ." from those responsible for its maintenance. While theliability of municipal corporations and turnpike commissions underthe statutes is absolute, that does not refer to the cause of action.The cause of action itself must be established within the termsof the statutes. The general rule as to municipal corporations andturnpikes is that normal amounts of ice and snow do not constitutea defect and do not render the road out of repair. Although iceand snow may render a street out of repair, there must be anaccumulation amounting to an obstruction before it can be withinthe purview of the statute creating a cause of action. Christo v.Dotson, 155 S.E.2d 571 (W. Va. 1967).This case supports the well-established principle that reasonablecare does not require a municipality or other public authority tofree its streets and sidewalks from ice and snow which havenaturally accumulated. Generally, liability is rarely imposed andthen ordinarily upon the theory that the ice and snow has createddangerous formations or obstacles and notice of their existence1967]2Submission to West Virginia Law Reviewhttps://researchrepository.wvu.edu/wvlr

Sales--Warranties Under the Uniform Commercial Code

https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=3325&amp;context=wvlr

Sales--Warranties Under the Uniform Commercial Code

Abstract

Similar works

Full text

Available Versions

The Research Repository @ WVU (West Virginia University)