Gloria GAFFNEY and Yolanda Marano, Trading as Counties Compressor Co., Plaintiff,
UNIT CRANE AND SHOVEL CORPORATION, a Corporation of the State of Delaware, Defendant.
Action by buyer of truck crane against manufacturer for breach of warranty. The manufacturer filed motion for summary judgment pursuant to rule 56. The Superior Court, New Castle County, held that where buyer on August 3, 1950, purchased from dealer a truck crane which was warranted to have a capacity to lift twenty tons and where buyer after using truck crane for one and one half years found that it would not lift twenty tons, action filed on February 16, 1954 was barred by three year statute of limitations.
Motion for summary judgment granted.
Morton E. Evans, Wilmington, Del., and M. Weintraub, Philadelphia, Pa., for plaintiff.
E. N. Carpenter, II, of Richards, Layton & Finger, Wilmington, for defendant.
RICHARDS, President Judge.
Defendant is the manufacturer of cranes, power shovels and other power driven equipment. It issues a bulletin in which it [49 Del. 382] describes a certain type of truck crane known as ‘ Unit 1520T, Truck Crane’, and represents that this particular type of truck crane, based upon 85 percent of the tipping load, with a boom length of 35 feet and working radius of 10 feet, has the capacity to lift the weight of 20 tons. It sells this equipment, including the truck crane known as ‘ Unit 1520T, Truck Crane’, to various distributors including Stewart Equipment Company of Philadelphia, Inc.
On August 3, 1950, plaintiffs purchased a ‘ Unit 1520T Truck Crane’, being serial No. 50206, from Stewart Equipment Company of Philadelphia, Inc., paying it the full price of $27,162, and delivery of said truck crane was made by said Stewart Equipment Company.
In making said purchase, the plaintiffs relied upon the description and representations contained in the bulletin issued by the defendant.
In fact, the plaintiffs first contacted the defendant about making the purchase of the truck crane but was referred to its distributor, Stewart Equipment Company of Philadelphia, Inc.
The affidavit of Arnold R. Corbett, vicepresident of the defendant, discloses that its method of doing business is to receive orders from dealers for machinery manufactured by it; that the machine is then assembled and shipped from Milwaukee to the dealer; that the cost of the machine is billed to the dealer, charged to his account and the title transferred to him; that the transaction by which the machine reaches the hands of the user is between the dealer and the user.
Plaintiffs accepted delivery of the truck crane and used it. They contend that no opportunity was available to test it until March 31, 1952, on which date an attempt was made to lift a ladle weighing about 18 tons under conditions set forth in defendant's bulletin, but the truck crane failed to lift it. Notice of this failure was given to Stewart Equipment Company of Philadelphia, Inc. who notified the defendant. Defendant's representative [49 Del. 383] and an employee of said Stewart Equipment Company did some work on the truck crane to repair it and it was tested in the presence of defendant's representatives but again failed in the same way. Defendant continued to work on the crane in order to put it in good operating condition but was unable to make it lift 20 tons.
On November 6, 1952, plaintiff wrote to Stewart Equipment Company of Philadelphia, Inc., threatening to bring suit against it. Since that time plaintiffs have continued to use the crane and have leased it to other companies to be used.
Finally on February 16, 1954, this action was brought against the defendant, more than three years after the truck crane in question was sold by Stewart Equipment Company of Philadelphia, Inc., and delivered to the plaintiff.
It appears from the complaint, that the plaintiffs have decided to keep the truck crane in question and maintain an action against the defendant for breach of warranty, under the ...