Supermatic Products Corp. v. Hegberg

VALLEE, J.

Appeal from an order striking a cross-complaint from the files.

Plaintiff Supermatic Products Corporation, called Supermatic, filed a complaint naming E. O. Hegberg and F. G.

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Moss individually and doing business as Moss Refrigeration Company, a partnership, and Moss Refrigeration, Inc., a corporation, collectively called Moss, as defendants. The complaint alleges that Moss is indebted to plaintiff in the sum of $7,638 and interest, for freezer cabinets manufactured by Supermatic and sold and delivered to Moss. Answers were filed by Moss denying any indebtedness. Moss Refrigeration, Inc., filed a cross-complaint naming Supermatic as cross-defendant. One count of that cross-complaint alleges that some freezer cabinets which Supermatic had manufactured and sold to Moss had been returned to Moss by its customers because of improper and defective materials used in them; that Moss, at the request of Supermatic, had disassembled the freezers, returned the cabinets to .Supermatic, and reassembled the freezers and returned them to its customers ; that Supermatic agreed to reimburse Moss for all costs and expenses incurred in the shipping, disassembling, and reshipping, which amounted to $5,922.91 and had not been paid. Supermatic answered that cross-complaint, denying the allegations thereof and pleading various special defenses.

Contemporaneously with the filing of its answer to the cross-complaint of Moss Refrigeration, Inc., Supermatic, without obtaining an order authorizing it to do so, filed a cross-complaint naming as the only cross-defendants The Presstite Engineering Company, a partnership, The Presstite Engineering Company, a corporation, collectively called Presstite, and William B. Hubbard, individually and as a general partner doing business as The Hubbard Company, a limited partnership, called Hubbard. That cross-complaint is in five counts: three for breach of warranty, one for negligence, and one for declaratory relief. The basic allegations of all counts are that Presstite manufactured and Hubbard sold to Supermatic a specified refrigerator sealer which was used by the latter in the manufacture of the freezer cabinets sold to Moss; that Moss had alleged in its cross-complaint that Supermatic was indebted to it; that if Supermatic is liable to Moss for any such indebtedness, Presstite and Hubbard are liable to Supermatic therefor; and that Supermatic had incurred expenses in reworking freezer cabinets for which Presstite and Hubbard are liable. The count for declaratory relief alleges the foregoing facts; that Supermatic contends that if it is liable to Moss, the warranty given to Supermatic by Presstite and Hubbard has been breached and the latter are