Hagan v. Mund's Boilers, Inc.

DORAN, J. This is an appeal from an amended judgment entered by the trial court on November 24, 1948, pursuant to notice served on the plain tiff-appellant, and superseding an original judgment entered July 13, 1948, after a trial without jury. The question raised on this appeal is in reference to the trial court’s power to set aside the original judgment and to substitute therefor a new and different decision making payment of the money judgment conditional upon a return to defendants of a boiler sold to the plaintiff.

The controversy herein arose out of a sale by respondents to appellant of “one 15 Horse Power Mund Automatic Boiler” which according to the complaint, respondent corporation had “warranted and guaranteed . . . would produce a low moisture or dry steam which could be injected in cheese to be processed by plaintiff.” The price alleged to have been paid by appellant was $1,674.51.

Appellant’s complaint, entitled “Complaint for Recission of a Contract, ” is in three counts. The first count sets up the terms of the sale, alleges notice of rescission, and seeks repayment of the purchase price. A second count is for the recovery of $500 expended in making adjustments and repairs recommended by the seller; the third count asks $5,000 in damages resulting from appellant’s inability “to manufacture and produce processed cheese and cheese foods, and lost sales thereof,” because of the defective boiler furnished. The answer admits the sale of the boiler but is otherwise a general and specific denial that there was any rescission, any liability, or any damage.

The trial court found that the boiler was furnished and warranted as alleged; that appellant paid $1,511.88 for the same; that the apparatus did not produce steam sufficiently dry for cheese processing. The court then concluded ‘ ‘ That the plaintiff is entitled to judgment against the defendant, Mund Boilers, Inc. . . . for the sum of $1,011.88, ” and judgment was rendered accordingly. The theory on which the judgment was rendered does not appear of record, nor does it appear how the court arrived at the amount of the judgment. It will be noted, however, that the decision is but a plain money judgment in favor of appellant without any conditions to be fulfilled by appellant. Neither minute entry, findings, conclusions or [103]judgment suggest that it was contemplated that appellant should return the boiler purchased.

Thereafter a 30-day stay of execution was granted, and a motion for a new trial was argued and denied. After the expiration of the statutory time for appeal from the original judgment, a further stay of execution was secured ex parte, and respondents filed a motion to vacate the judgment on the ground of “mistake, inadvertence, surprise or excusable neglect” under Section 473 of the Code of Civil Procedure. Supporting this motion is an affidavit by one of respondents’ attorneys stating that at the trial the court rules “that the Defendants were entitled to the return of the . . . boiler. . . . That said proposed judgment so prepared by said plaintiff (and signed by the court) failed to provide for the return or redelivery of said . . . boiler.” The affidavit then avers that said attorneys “relying on the plaintiff’s understanding of said ruling and upon said plaintiff’s sense of fairness, equity and justice, did not require that the judgment provide for the return of said boiler.” When defendants tendered the amount of the judgment, plaintiff refused to return the boiler since the judgment contained no such requirement.