Curry, Earl Moss, Jr.

English

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Volume 65 Issue 4 Article 16 June 1963 Sales--Persons Protected by Warranties Under the Uniform Commercial Code--Employee of Buyer Held Not Protected Earl Moss Curry Jr. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Commercial Law Commons Recommended Citation Earl M. Curry Jr., Sales--Persons Protected by Warranties Under the Uniform Commercial Code--Employee of Buyer Held Not Protected, 65 W. Va. L. Rev. (1963). Available at: https://researchrepository.wvu.edu/wvlr/vol65/iss4/16 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW REVIEWKellas, 122 S.E.2d 177 (W. Va. 1960), the court stated that, to resista motion for summary judgment, the opposing party must presentsome evidence to indicate that the facts are in dispute and that themere contention that the issue is disputable is not sufficient.Although Federal Rule 56 applies to all civil cases, the courtshave been reluctant to use summary judgment procedure in manyinstances, particularly where an issue of public moment was in-volved. Poller v. Columbia Broadcasting System, Inc., supra; Ken-nedy v. Silas Mason Co., supra; Pacific American Fisheries v. Mul-laney, 191 F.2d 137 (9th Cir. 1951). These decisions stem fromthe reluctance of the judiciary to get away from the open court andthe fact that the credibility of witnesses cannot be effectivelyexamined by affidavits and depositions. Sartor v. Arkansas GasCorp., 321 U.S. 620 (1944); Note, 99 U. PA. L. REv. 212 (1950-51).The amendment to Rule 56 of the Federal Rules has apparentlyeliminated the problem. Such an amendment would not appearnecessary in West Virginia as the court has indicated it will requirethe opposing party to present facts to oppose the motion for sum-mary judgment and mere allegations would be insufficient. Tohold otherwise would be to avoid the primary purpose of the rule.Sterl Franklin ShinaberrySales-Persons Protected by Warranties Under the UniformCommercial Code--Employee of Buyer Held Not ProtectedP, a bartender of a fraternal lodge, was injured by flying glasswhen an unopened bottle of carbonated soda water exploded as itwas standing behind the bar. The soda was bottled, sold anddelivered by D to P's employer. P sued for breach of implied war-ranties of fitness and merchantability. The trial court sustained D'sdemurrer to the complaint. Held, affirmed. The manufacturer'simplied warranties of fitness and merchantability does not extend toan employee of the purchaser under UNooIm CoM!mCIAL CoD, §2-318. Hochgertel v. Canada Dry Corp., 187 A.2d 575 (Pa. 1963).The decision of the instant case may have great impact in WestVirginia, due to the West Virginia Legislature's recent passage ofthe Uniform Commercial Code. The issue now is, will the WestVirginia Court extend warranties to third party beneficiaries beyondthe provisions of the Code?[ Vol. 6}51Curry: Sales--Persons Protected by Warranties Under the Uniform CommerciDisseminated by The Research Repository @ WVU, 1963CASE COMMENTSThere is a great deal of authority to the effect that there canbe no implied warranty without privity of contract, and that a manu-facturer is not liable for breach of warranty to third persons who arestrangers to the contract of manufacture or sale for the resultsof any defects which may later develop in his product. Turner v.Edison Storage Battery Co., 248 N.Y. 73, 161 N.E. 423 (1928);Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576 (1923);Annot., 27 A.L.R. 1533 (1923).While the West Virginia court has never specifically decideda case on this point there is dictum that a seller's implied warrantydoes not inure to the benefit of parties other than the purchaser.Burgess v. Sanitary Meat Market, 121 W. Va. 605, 5 S.E.2d 785(1939).This, however, has been changed by the Uniform CommercialCode. Section 2-318 states that; ".... warranty... extends to anynatural person who is in the family or household of his buyer or whois his guest in his home if it is reasonable to expect that such personmay use . . ." the goods. "A seller may not exclude or limit theoperation of this section."There is a growing modem trend holding that privity is un-necessary to warranty liability. Henningsen v. Bloomfield Motors,Inc., 32 N.J. 358, 161 A.2d 69 (1960). In sustaining recovery inthe Henningsen case, the court proposed the establishment of acause of action in favor of the buyer's family and all others whoseuse is with the buyer's consent. Since this group is within the distri-bution chain and is one of the targets of advertising, the manu-facturer and the dealer should be made liable to them on the sameconsideration on which liability to the buyer is established. Insimilarly extending the dealer's liability, the Uniform CommercialCode, which the court in the Henningsen case cited as a persuasiveanalogy, expresses a desire to free "beneficiaries (of the warranties)from any technical rules as to privity". UNn oRm ComuErcrk CODE§ 2-318, Comment 2.Once liability is predicated on a weighing of the interests, withprivity no longer a factor of decision, it seems that the position ofthe court in the Henningsen case is more desirable. Recognizingthe realities of present day mass marketing, the court concluded thata remote manufacturer who puts an article in the stream of trade andcreates demand for it by advertising should be held to guaranteehis product to the ultimate consumer. Henningsen v. Bloomfield1963 ]2West Virginia Law Review, Vol. 65, Iss. 4 [1963], Art. 16https://researchrepository.wvu.edu/wvlr/vol65/iss4/16WEST VIRGINIA LAW REVIEWMotors, Inc., supra. This is similar to the theory that the warranty"runs with the goods" from the manufacture to the consumer. CocaCola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927).Once privity is no longer a factor of decision, it would seem thatthe warranty should extend to any person who can reasonably beexpected to use the product. The best argument for this position isthe "risk-spreading" theory, which maintains that the manufacturers,as a group and industry, should absorb the losses which must resultin a complex society from the use of their products because they arein the better position to do so, and through their prices to pass suchlosses on to the society as a whole. Escola v. Coca Cola Bottling Co.,24 Cal. 2 453, 462, 150 P.2d 436, 441 (1944).In applying Section 2-318 of the Uniform Commercial Code tothird party beneficiaries a court must get away from the contractconcept of warranty. There is little question that, unless there isprivity, liability to the consumer must sound in something other thancontract. Originally, an action grounded on breach of warranty,sounded in tort rather than contract. Ames, History of Assumpsit, 2H-.xv. L. REv. 1, 8 (1888). It was not until late in the eighteenthcentury that a contract action would lie for breach of warranty.Today, because of this mistake in legal history, warranty has becomea hybrid of both tort and contract and may operate between partiesnot in privity of contract. Lambert, Crumbling of the Citadel:Strict Warranty Liability in Advertised Product Cases, 481 INs. L. J.94 (Feb. 1963). For a detailed comment see Prosser, The AssaultUpon the Citadel (Strict Liability to the Consumer), 69 YALE L. J.1099, 1126-27 (1960).There is some indication that a few courts are adopting thisview when they say that the warranty is not the one made on theoriginal sale, and does not run with the goods, but it is a new and in-dependent one made directly to the consumer, and that it does notarise out of or depend upon any contract, but is imposed by law as amatter of policy. Markovich v. McKesson & Robbins, Inc., 106 OhioApp. 265, 148 N.E.2d 181 (1958); La Hue v. Coca Cola Bottling,Inc., 50 Wash. 2d 645,314 P.2d 421 (1957).New York has recently breached the battlements of the "citadelof privity" by overruling the holding in Turner v. Edison StorageBattery Co., supra (express warranty recovery required privity) inholding that privity of contract is not essential to the maintenanceof an action against a manufacturer for breach of express warranty.[ Vol. 653Curry: Sales--Persons Protected by Warranties Under the Uniform CommerciDisseminated by The Research Repository @ WVU, 1963CASE COMMENTSRandy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 181N.E.2d 399,226 N.Y.S.2d 363 (1962). The Randy Knitwear case hassince been relied upon to strike another blow at the concept ofprivity. The New York court discarded, in a suit by a purchaser of ariveting machine for loss of an eye, the privity rule in an actionagainst a manufacturer for breach of implied warranties of fitnessand merchantability. Hoffman v. Cox, 229 N.Y.S.2d 485 (Sup. Ct.1962).As the West Virginia court prior to the passage of the UniformCommercial Code has indicated that warranty was based uponprivity, it seems doubtful that they will expand upon the actionof the legislature and further extend the protection of the Com-mercial Code. See Burgess v. Sanitary Meat Market, supra. Thereis even more indication of this since the West Virginia court recentlyheld that a buyer of a truck, under an express warranty whichspecifically excluded implied warranties and limited the seller'sliability to the replacement of defective parts, could not recoveron alleged implied warranty or recover consequential damages. Inso holding the court rejected the Henningsen case on the basis thatWest Virginia had no statutory provisions with regard to impliedwarranties wherein they could come within the principle allowingrecovery on the basis of public policy. Payne v. Valley Motor Sales,Inc., 124 S.E.2d 622 (W. Va. 1962). This has been the position ofthe court in the instant case and also that of the Connecticut courtwhen, in interpreting the language of Section 2-318, it held that amaid was not a member of the buyers household. Duart v. Axton-Cross Co., 19 Conn. Supp. 188, 110 A.2d 647 (1954).While the draftsmen of the Commercial Code have not extendedstrict warranty liability beyond the family, household or guest ofthe buyer, there was a conscious determination on their part toleave this volatile proposition to evolving case law. Thus, the argu-ment presented in the instant case, that the court cannot extend thecoverage of strict warranty liability because the Commercial Codedoes not go beyond this point, is fallacious. The draftsmen of theCommercial Code concluded that the case law in this area was intoo much of a state of flux to attempt to codify it at the present time.To make such an important policy decision at the outset might jeo-pardize the entire development of uniform commercial law. Thedraftsmen in remaining neutral on this point have left the decision tothe policy making determination of the various courts to decide1963 ]4West Virginia Law Review, Vol. 65, Iss. 4 [1963], Art. 16https://researchrepository.wvu.edu/wvlr/vol65/iss4/16WEST VIRGINIA LAW REVIEWhow far they will go in extending coverage beyond that of Section2-318. The maxim of statutory construction which requires thatwhich is not expressly included to be excluded should not be fol-lowed in this instance as it was the intent of the legislature (throughthe draftsmen of the Commercial Code) to leave the door open foreach court to make it's own policy determination. UNIFoRM Com-mRCIAL CODE § 2-318, comment 3.Earl Moss Curry, Jr.Sales-Uniform Commercial Code--Consideration forModification of a ContractD, a Massachusetts corporation, sold an airplane to P, a Con-necticut resident. Prior to the due date of the first payment the air-plane developed engine trouble. To alleviate Fs financial burden asa result of the installation of a new engine, D, through its officers,orally agreed to a modification of the contract. For the first year thepayments would be 100 dollars per month rather than 200 dollars permonth. Approximately four months later, D's president requesteda return to the higher payments. P refused to comply and D re-possessed the airplane. Decree awarded P damages. Held, af-firmed. MAss. ANN. LAws ch. 106, § 2-209(1) (Supp. 1958), UNi-Foim ComEcRL CoDE: § 2-209 (1), provides that "an agreementmodifying a contract within this Article needs no consideration to bebinding." Skinner v. Tober Foreign Motors, Inc., 187 N.E.2d 669(Mass. 1963).The principal case represents only one of the changes of con-tract law in sales under the Uniform Commercial Code. Withthe enactment of the Code in West Virginia a new approach mustbe taken to transactions in goods. The general law relative to con-tracts supplements the provisions of the code unless displacedby particular provisions. UNmoR CoanvcraLA CODE § 1-103.Prior West Virginia law required consideration for modificationof a contract. Thomas v. Mott, 74 W. Va. 493, 82 S.E. 325 (1914),set forth the principle that "no promise is good in law unless thereis a legal consideration in return for it." It is not valuable considera-tion to do that which one is legally bound to do because the promisorreceives nothing more than he is already entitled to. See, Bischoff[ Vol. 655Curry: Sales--Persons Protected by Warranties Under the Uniform CommerciDisseminated by The Research Repository @ WVU, 1963

Sales--Persons Protected by Warranties Under the Uniform Commercial Code--Employee of Buyer Held Not Protected

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Sales--Persons Protected by Warranties Under the Uniform Commercial Code--Employee of Buyer Held Not Protected

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