IMPLIED WARRANT IN BAILMENT FOR HIRE.

Court of Appeals for Hardin County.

#### The Thompson Spot Welder Company v. The Dickelman Manufacturing Company.

Decided, April 22, 1921.

*Contracts Covering Bailments for Hire*— Implied *'Warranty that Machine Lease on a Rental Basis*— Will *do the Work for which it is Intended*— Sales *and Bailments, How Distinguished.*

1. In a contract of bailment for hire where the bailor knows the use to be made of the property, there is an implied warranty that the property shall be reasonably fit for said use.

2. Where in such a case there is a written contract, such warranty will be implied therein, unless the implied warranty be incompatible with • the express warranty, or unless by other language of the contract there is a preclusion of such implied warranty.

*Stillings & Johnson,*for plaintiff in error.

*Smiclc <& Soge-,*for defendant in error.

Crow, J.; Hughes and Warden, ,JJ.,

concurring.

Plaintiff in error who was plaintiff below, sued for unpaid quarterly rentals of an electric welding machine known as a spot welder, under a written contract, the material provisions of which are the following:

The machine to be leased for use by defendant in the manufacture of corrugated metal corn cribs, and to be in condition for attachment of wiring for electrical current; installation to be made by defendant, and the apparatus kept in repair by the latter who should also furnish alternating current of specified voltage at the machine “to weld two pieces seven gauge of sheet metal of a total thickness of -”; and plaintiff “guarantees that the apparatus shall be well made of suitable material and free from electrical and mechanical defects”; and if at any time *322defendant desired to return the machine, in good condition, less ordinary wear, f. o. b. plaintiff’s factory, same might be done by giving plaintiff in writing, a “quarter’s notice,” and paying all sums due plaintiff to the date of such return.

The machine was installed by defendant in its factory.

Defendant remitted to plaintiff the first quarterly installment for the use of the machine shortly after the latter had been received at its factory, bnt before operating the same, and the second quarterly installment was remitted by defendant to plaintiS subsequent to the controversy which arose over the alleged failure of the machine to do the work for which defendant obtained it. In other words, defendant paid plaintiff from the 14th of February, 1918, the date from which it claims to have received . the machine, until the 13th of August, 1918, prior to which latter date it ceased use or attempted use of the machine.

The main defense in defendant’s answer is in substance as follows; that prior to the execution of the written contract in controversy, it was engaged in the manufacture of metal corn cribs, and that toy circulars and correspondence plaintiff represented to defendant that the machine would without skilled' labor weld the metal sheets used by plaintiff in the construction of corn cribs, sixty per cent, stronger than when joined by bolts or rivets as had been the process in defendant’s factory, and that said metal sheets could be satisfactorily welded by said machine which machine would be adaptable for defendant’s said work; that plaintiff sent a personal representative to its factory, who inspected the work proposed to be done by the said machine, and said representative after having made- such inspection assured defendant that the machine would weld and join together the parts of the crib in a perfectly satisfactory manner and that the same would be entirely suitable for said work, and recommended that defendant use the type of machine provided for in the contract; that defendant had no knowledge 'concerning the ability of the machine to perform the work for which it intended to use the machine; that defendant relying solely on said *323representations, entered into the contract; that all said representations so made by plaintiff were untrue; that on the 2nd of July, 1918, defendant took the machine out of its factory, packed it for shipping, and notified plaintiff that it would not do the work as represented, that it would deliver the machine to plaintiff, and requested that the latter direct defendant where - it desired the machine delivered, but that plaintiff neglected to give defendant shipping directions, and that defendant thereafter shipped the machine to plaintiff.

The testimony introduced in behalf of defendant abundantly tends to prove its said defense, and to further prove that noiAvithstanding the attempt of plaintiff to make the machine operate as contemplated by the parties, it failed to do so after reasonable effort by defendant’s employees.

The trial resulted in a verdict and judgment for defendant.-

The trial court eliminated from the case defendant’s averments of special damage resulting from work imperfectly- done by the machine on cribs shipped by defendant to customers, and restricted the defense to an extinguishment of plaintiff’s claims for the rentals subsequent to the first two quarterly periods which, as already stated, defendant had paid.

Defendant did not question the right of plaintiff to retain the two payments, and does not attack by cross-petition in error the correctness of the trial court’s action in removing from the case, its right to recover special damage. Consequently those two -matters will not be discussed.

In submitting the case to the jury, the trial court treated the transaction as- though there had been a sale of the property by plaintiff to defendant, rather than a bailment for hire, and applied the law governing implication of -warranty of fitness for use, Avhere the particular purpose for which an article is sold is made known to the seller and reliance is placed by the.buyer on the skill or judgment of the seller.

Upon that action of the trial court plaintiff in error relies for reversal of the judgment.

*324Two questions are involved in the position of plaintiff in error:

1. Is there such essential similarity ¡between a sale of personal property, and a bailment for hire, as requires or justifies application of the same rule relative to warranty of fitness?

The only basic facts whi'ch distinguish a sale from a bailment are the requirement of restoration of the article delivered, and whether title passed from the one to the other.

Implication of warranty of fitness of the article sold for a particular purpose, existed under special circumstances, at common law, and now is statutory in Ohio. The same reasons, namely, considerations of ordinary integrity, upon which the implication existed at common law, manifestly justify a like doctrine in relation to a bailment for hire, at least when attended by parallel facts, because with the exception just pointed out, there is no difference between a sale of personal property and a letting of it for hire.

The exact question in hand has not been decided in any reported case in Ohio. However, iff *6 Corpus Juris,*at page 1117, it is stated that in a bailment of hiring there is imposed on the bailor, in the absence of specific contract or representation, an obligation that the article hired shall be reasonably fit for the purpose of its intended use, when such purpose has been made known to the bailor prior to the 'bailment, and the doctrine thus expressed is supported ¡by numerous cases there cited.

We therefore accept and adopt as correct, the legal principle there stated, and approve the action of the trial court in its recognition and application to the instant case, notwithstanding the inadvertence in referring to plaintiff and defendant as seller and buyer instead of bailor and bailee.

2. There being present in the contract in issue, an express warranty of proper construction, suitableness of material, and freedom from electrical and mechanical defects, it is necessary to decide whether the implied warranty can obtain, in view of the rule which prohibits parol evidence in relation to written contracts.

*325This feature of the ease can be disposed of by the simple test of whether the implied warranty is irreconcilable with the one expressed, inasmuch as there is no language in the contract precluding an implied warranty, that is to say, the contract itself does not provide that it contains *all*the obligations of the respective parties.

It is a general rule that an express warranty in a written contract, excludes therefrom an implied warranty on the *same suhject,*but both an express and an implied warranty may exist, when compatible with each other. *Elliott on Contracts,*Volume 1, pages 227 and 228, and cases there cited.

In the present ease there is no repugnancy between the provision that the machine shall be well made of suitable material and free from electrical and mechanical defects, and the implied warranty that it should be reasonably fit for the known purpose for which plaintiff rented it to defendant, in view of the added fact that defendant had no knowledge concerning the adaptability of the machine to its use prior to thé execution of the contract.

Finding no error, the judgment is affirmed.