File v. U.S. MacHinery Supply Co.

MOSK, J. pro tem.

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Failing to prevail on any one of his three causes of action in the trial court, plaintiff-appellant has appealed, alleging insufficiency of the evidence to support the judgment and errors in rulings on admissibility of certain offered evidence.

The first cause of action was based on fraud; the second on breach of express warranty; the third on violation of a price ceiling established pursuant to the National Defense Production Act. Appellant concedes his evidence was inadequate to sustain the third cause of action.

On August 14, 1951, appellant, who has operated a machine shop since 1940, purchased from respondent a device known as a centerless grinder for the sum of $7,500 plus $225 tax. Two written documents bearing that date were prepared, setting forth the terms of the sale, description of the machine, and related data. The first instrument was entitled “Purchase Order Contract,” and the second was a “Conditional Sale Contract” which was promptly assigned to and discounted by the Morris Plan, a lending agency.

Appellant claimed that he sought to purchase a used Filmatic grinder, a trade named machine; that respondent’s representative William L. Spurlock, showed him a crated

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macMne and orally assured him it was a Filmatic and was good enough to hold a minute tolerance in grinding; that he bought it on that first occasion. After signing the written instrument, in which the machine was identified by serial number but not by name or model, appellant discovered upon delivery that the machine was not a Filmatic. He claims to have protested promptly to Spurlock, who abruptly referred him to the written contracts. Upon subsequent use the machine was found to permit an unsatisfactory tolerance in grinding. When further representations were made to Spur-lock, the latter agreed to pay for necessary repairs, and used William E. Delk, a mechanic selected by appellant. While the repairs were being made, appellant stated the machine was idle for more than a month, and during that period he lost a number of accounts and the profits therefrom. For those he sought money damages.

On the other hand, Spurlock asserted appellant inquired about a grinder, that he showed him an uncrated centerless grinder readily identifiable as not being a Filmatic, that appellant “crawled all over the machine” in inspection, that he returned a second time with another man before entering into the purchase contracts. Spurlock denied appellant ever protested about failure to deliver a Filmatic. He concedes some mechanical defects' appeared in the grinder a short period after delivery, and upon insistence of appellant that his own mechanic, Delk, be engaged to perform the repair work, Spurlock agreed to and did hire Delk. After repair work on the machine was completed, Delk testified it was in good condition and remained so up to the time of trial.