Dorman v. International Harvester Co.

Opinion

This case involves an action arising out of the purchase of a tractor and backhoe by the appellant and cross-respondent, William A. Dorman (hereinafter, Dorman) from the respondents and cross-appellants, International Harvester Company (hereinafter, I.H.) and International Harvester Credit Corporation. 1 Dorman alleged two causes of action: (1) for breach of express and implied warranties of merchantability and fitness for particular purpose, seeking damages “in the sum of $7,729.98, which sum includes monies paid to the defendants and each of them, on account of the contract price . . . and loss of earnings and business sustained by the plaintiff to date”; (further loss was left open for proof); (2) for “rescission.” At the time of trial, Dorman dismissed his cause of action for rescission and proceeded to trial on the breach of warranty cause of action. 2

*14 The jury returned a verdict for Dorman in the sum of $19,500 on the complaint, and against the cross-complainants on the cross-complaint (which sought recovery of the equipment). After entry of the verdict, I.H. filed motions for a new trial and for judgment notwithstanding the verdict on the complaint and cross-complaint. The trial court denied the motion for a new trial, granted the motion for judgment notwithstanding the verdicts, and reduced the verdict from $19,500 to $7,233.68. 3 It also denied Dorman his costs.

Dorman appeals from the judgment entered on the jury verdict, and from the judgment notwithstanding the verdict. I.H. cross-appeals from the portion of the judgment notwithstanding the verdict which awards Dorman $7,233.68 on the complaint, from the portion of the judgment notwithstanding the verdict which failed to award I.H. attorney fees on its cross-complaint, and from the original judgment on the complaint and cross-complaint.

Facts

Dorman enterca into a “Retail Instalment Conditional Sales Contract” with I.H. purportedly on October 31, 1968 (he testified that he executed a second contract on November 3) to purchase a new tractor and backhoe for $12,912.26, including finance charges, and had paid a total of $7,233.68 on the contract. Dorman purchased this equipment for use in his earth-grading business and took delivery on November 4, 1968. The evidence adduced at trial shows that Dorman experienced problems with the tractor from the day he took delivery. The tractor broke down on numerous other occasions during the period of November 7, 1968 to August 21, 1969 and it had to be returned to I.H. for repairs. On August 13, 1969, Dorman sent a notice of rescission and breach of warramy of I.H., and filed suit on December 19, 1969.

Disclaimer

At the outset of the trial, the court considered the issue of whether the retail instalment conditional sales contract contained a valid dis *15 claimer of implied warranties. The disclaimer in question is shown in its context in the facsimile below (appearing after paragraph “9. Terms of Payment”):