Merchants Finance Co. v. Acosta Bros.

THOMPSON, J.

— This appeal is from a judgment recovered by plaintiff as assignee of a contract for the purchase by defendants of a tractor, in the amount of the unpaid purchase price, to wit, $865 and interest and $100 attorneys’ fees as provided for in the written agreement.

The defendants alleged in their answer that at the time of their purchase the property was inaccessible to them; that the seller knew that they desired it for the purpose of pulling a six-foot double disc; that the tractor did not have sufficient power to pull such a disc and was for that reason not sound or merchantable; that when they attempted to use it to pull that size disc it broke. At the trial the defendants introduced certain testimony to the effect that some time before the sale they told Mr. Johnson, the seller, that they w.anted the tractor for the purpose of pulling a six-foot double disc. On motion of plaintiff this testimony was stricken out on the ground “that the oral warranty cannot be introduced in a written contract.” It is of this ruling of the court that appellants complain.

The implied warranty declared by section 1771 of the Civil Code, having application to the present case, reads as follows: “One who sells or agrees to sell merchandise inaccessible to the examination of 'the buyer, thereby warrants that it is sound and merchantable.” There is a finding by the court, supported by substantial testimony, that “ . . . the said tractor was in all respects sound and merchantable.”

[433]

Appellants’ counsel in Ms brief refers to the implied warranty provided for in section 1769 of the Civil Code as follows: “One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any' latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein.” He fails, however, to allege such a warranty, and, furthermore, there is no proof that the seller was the manufacturer. In so far as proof of knowledge on the part of plaintiff’s assignor that defendants desired the tractor for the purpose of pulling a particular sized disc is concerned, such testimony would only be relevant under the theory that the implied warranty specified in section 1770 of the Civil Code attached to the tractor in question. That section reads: “One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose.” It has no bearing here. As is said in