Hart & Burns, Inc. v. Robinson

BARNARD, P. J. The plaintiff was engaged in the manufacture and sale of paints in Riverside County. The defendant owned a ranch on which he was raising horses. In dividing the land into paddocks and other enclosures he built about five miles of fencing. The fences were made of wood, except for a small piece of metal fence. Beginning in July, 1948, the plaintiff furnished paint which was applied to this fencing. The defendant paid the bill for the first batch of paint amounting to $1,018.70. The defendant made some complaint about the paint but was persuaded by the agents of the plaintiff, in January, 1949, to order a second batch of paint amounting to $1,115.72, for the purpose of painting the remainder of this fencing.

The plaintiff brought this action on October 4, 1949, seeking to recover this $1,115.72, which the defendant had refused to pay. The defendant filed an answer and counterclaim, and also filed a cross-complaint alleging damage in various amounts. He alleged both a verbal and a written warranty of the paint, and a breach of those warranties. The plaintiff answered the cross-complaint denying any breach of warranty. After a trial, the court found in favor of the defendant as to all material facts and entered a judgment denying any recovery to the plaintiff, and awarding the defendant $4,695.69 on his cross-complaint. The plaintiff has appealed from that judgment.

The respondent testified that before buying any of this paint he had several conversations with Mr. Mitchell, the appellant’s vice president in charge of sales, and with Mr. Hedgepeth, appellant’s district salesman; that they approached him for the order saying they wanted to make this a fine job which they could show to other prospective customers ; that Mr. Mitchell said he would guarantee the paint to last three years, but was sure it would last better than five; and that Mr. Mitchell told him this paint would be specially made for him and would be purposely made for outdoor fencing. This was confirmed by the testimony of Mr. Hedgepeth, who testified that Mr. Mitchell told the respondent that he would guarantee the paint to be made of [538]top-grade material and would guarantee that under normal conditions it would last from three to five years; and that he himself told the respondent “It is a five-year paint” and under normal conditions would last in the neighborhood of five years. Before the first paint was applied, the respondent was given a letter dated July 20, 1948, and signed by Mr. Mitchell as vice president, which reads: