Riesen v. Leeder

DRAPER, J.

Cross-defendant manufacturer appeals from judgment in favor of cross-complainant retailer, in an action for breach of implied warranty. Manufacturer sold coffee vending machines to retailer in January 1954. The latter resold four of them to plaintiff June 22, 1955, and made delivery in August 1955. Plaintiff immediately complained that the cups of coffee dispensed by the machines were too weak or too bitter, and that the machines broke down. The complaints were renewed frequently. In late September or “very early October” 1955, plaintiff offered to return the machines to Leeder, the retailer, and demanded return of the price which had been paid. Plaintiff filed his complaint in this action July 9, 1957. Leeder cross-complained against the manufacturer October 15, 1957. Judgment was ordered in favor of plaintiff against Leeder on the complaint, and in favor of Leeder against the manufacturer, for the same amount, on the cross-complaint. The only appeal is by the manufacturer from the judgment on the cross-complaint. The sole point raised is the statute of limitations.

In an action for breach of implied warranty, the two-year period (Code Civ. Proc., § 339, subd. 1) governs

(Wyatt

v.

Cadillac Motor Car Division,

145 Cal.App.2d 423, 426 [302 P.2d 665]).

Respondent Leeder assumes that his cross-action is one for indemnity, and confines his argument to the question when

[582]

the statute begins to run against such an action. His assumption is erroneous. “Indemnity is a contract by which one engages to save another from a legal consequence . . .” (Civ. Code, §2772). Nowhere does Leeder plead, prove, or even suggest an agreement by manufacturer to indemnify him. Nor does he plead or prove any tort liability, much less that unusual situation which can give one tortfeasor a claim over, perhaps akin to indemnity, against the other

(City & County of San Francisco

v.

Ho Sing,