press manufacturer's brochure relating the specifications and capacity of a particular press amounted to more than mere puffing or opinion and constituted express warranties of fact as set forth in brochure
How later courts described this case
- press manufacturer's brochure relating the specifications and capacity of a particular press amounted to more than mere puffing or opinion and constituted express warranties of fact as set forth in brochure
Written by the judges who cited it.
The opinion
PORTER, Justice
(concurring in part, dissenting in part).
INDEMNITY
Perfection and Whitin agreed that the trial court should determine the indemnity issue by applying the facts expressly and impliedly found by the jury verdict. In essence, these parties waived a jury on the indemnity issue, and agreed that the trial court could, consistent with the jury verdict, make findings of fact and conclusions of law upon which the court should then render judgment as to Perfection’s cross-claim for indemnity from Whitin.
The trial court found that the failure of the printing press to operate was caused by the defective parts and workmanship of the press, as manufactured by Whitin, notwithstanding the attempt of Perfection, using due care and competent personnel, to make the press operate. The findings of fact exculpate Perfection and inculpate Whitin as the sole cause of the failure of the press to operate, and thus necessarily as the sole cause of plaintiff’s damages.
*509 Indemnity for Perfection against Whitin can be adjudged on at least two grounds. (1) The trial court concluded that Whitin breached its implied warranty of merchantability to Perfection. Plaintiff’s money judgment against Perfection is a detriment to Perfection proximately caused by Whitin’s breach of its warranty to Perfection, for which Perfection is entitled to be indemnified. First National Bank of Arizona v. Otis Elevator Co., 2 Ariz.App. 80 , 406 P.2d 430 (1965); reh. den., 2 Ariz.App. 596 , 411 P.2d 34 (1966). (2) Perfection may be compelled to pay money to plaintiff which in justice Whitin ought to pay, and Perfection’s entitlement to indemnity is not barred by conduct on its part of a wrongful nature. See First National Bank of Arizona v. Otis Elevator Co., supra. Perfection’s unsuccessful efforts to make the press work should bar its right to indemnity only if there is a basis for finding that some act or omission of Perfection contributed to the cause of the damage and was independent of the damage caused by Whitin. In view of the findings of fact and conclusions of law of the trial court there is no basis for any such finding against Perfection.
I would distinguish Schroeder v. Fageol Motors, Inc., 1975, 86 Wash.2d 256 , 544 P.2d 20, 25 , on the ground that it involved resale of a used truck.
RESCISSION
In addition to awarding Perfection indemnity on its cross-claim against Whitin, the trial court also awarded Perfection a rescission of the purchase of the press by Perfection and adjudged that Whitin return the purchase price to Perfection upon Perfection’s return of the press to Whitin. That part of the judgment upon Perfection’s cross-claim was error. Perfection’s cross-claim sought indemnity only, and it should not be held that the agreement between Whitin and Perfection to allow the trial court to apply the jury findings to the indemnity issue should be interpreted as a further agreement to allow the trial court to make findings and conclusions on an issue never tried, namely, the question of whether or not Perfection should or should not be entitled to rescind as against Whitin.
There was no evidence taken during the trial relative to Perfection’s right to rescind as against Whitin, nor did the trial court take any such evidence after the jury trial concluded and before the trial court entered judgment upon the cross-claim. To allow the trial court to make findings and conclusions concerning rescission, under the circumstances here, deprived Whitin of an opportunity to present defenses pertinent to the issue of rescission as it would be entitled to do if the issue were presented by the pleadings. American Property Services v. Barringer, S.D., 256 N.W.2d 887 (1977).
CONCLUSION
I. I concur in the opinion of the court affirming the judgment of plaintiff against Perfection and Whitin.
II. I respectfully dissent from the opinion of the court denying Perfection indemnity against Whitin, and would hold Perfection entitled to indemnity.
III. I concur in the opinion of the court reversing that part of the judgment in favor of Perfection against Whitin awarding Perfection rescission and return of the price, but concur only upon the grounds above stated.
I am authorized to state that Justice Morgan joins in this concurring and dissenting opinion.