Appeal from the Circuit Court of Warren County, Ninth Judicial
Circuit; the Hon. KEITH F. SCOTT, Judge, presiding. Affirmed.
Defendant Warren Sloan, who was a farmer, attended a farm sale on January 23, 1965, accompanied by his hired man, Dale Prater. The sale was conducted at a point approximately 50 miles from defendant's home. Defendant was not acquainted with anyone attending the sale with the exception of the auctioneers. Defendant planned to bid on a 1962 A-C self-propelled four-row combine. He arrived prior to the sale and had an opportunity to examine the combine, and the record indicates that he did in fact examine it. Just prior to the auction of the combine, the motor was started and was run for a few minutes. The motor on the combine was newly painted. Prior to the time the bidding on the combine began, one plaintiff, Mr. Blade, and the auctioneer, both made statements that the combine was in good repair and ready to go to the cornfield. Defendant testified that in making the bid on the combine, he relied on the statements made by Blade and the auctioneer, as he could not see into the motor. Defendant was the successful bidder at the auction and the combine was struck off to him for $7,325.
As the auction moved to another article, a stranger approached defendant and said, "Do you know that the block is busted on that combine?" Defendant then checked the motor and found where there had been a three-inch crack in the block which had been welded and painted over, probably with several coats of paint. Defendant then tried to locate the owners of the combine and finally found Robert Lee, one of the two owners. Defendant stated he had just learned of the cracked block and the weld. Plaintiff Lee admitted that the motor had been broken and said that it was done about a year ago. Defendant stated that Lee said: "But you don't need to worry about that motor, because I'll guarantee that motor." Plaintiff Lee denied making such statement and that the statement he made to the defendant after the sale concerned only the weld and his statement was that he would guarantee the weld. He also indicated in his testimony that the weld was made about a year and a half prior to the time of the sale, in the fall of 1963, and that the machine had been used for a full season and part of another season and that the weld had held effectively. He stated that it was possible to tell from the outside of the motor if the weld leaked from the inside out, and, from the condition of the oil in the motor when it was changed, whether it leaked from the outside in. All indications were, he stated, that there was no leak or problem with the weld. The combine was used for custom work so that it had a great deal of use after the weld was made. Gene Blade, the other plaintiff, also testified as to the condition of the weld and stated that it had given no trouble since it was made in the fall of 1963. Following the conversation with plaintiff, Robert Lee, defendant paid for the combine with a check.
On the following Monday, the defendant returned to the farm to pick up the combine. Plaintiff Blade had put it in a shed to protect it and he drove it out for defendant. Defendant brought his hired man, Mr. Prater, with him to drive the combine back to defendant's home. Prater testified that Blade showed him how to start the combine and how to operate the pedals. Prater also testified that he had never driven a self-propelled combine before but that he had driven tractors. Neither defendant nor Prater inspected the combine or checked the oil before Prater drove it away. At a point 23 miles from where the combine was picked up, it stopped running on the highway. Prater testified, "It just quit stopped dead." He did not then inspect the machine but got a ride to another town and found the defendant. Prater also testified that he did not check any of the gauges during the time he was driving the machine and did not know if the oil gauge was functioning. Defendant Sloan (with Prater) went back to the combine that afternoon and put flares around it but did not examine the combine in any way.
On the following morning, defendant Sloan called Blade and told him that the combine had stopped along the road and it had run out of oil. There was no evidence in the record that Sloan had ever checked the oil after the combine stopped, but apparently defendant Sloan had inferred from what Prater had told him that the machine was out of oil. Blade asked where the combine was located and said he would be over. After defendant Sloan had talked to Blade he went to town and stopped payment on the check he had given for the combine, and then went to the sheriff's office to get someone to help him with the traffic when they moved the combine. Sloan and Prater then went out to the combine with a supply of oil. They waited until Blade and Lee came before looking at the combine. As Blade, Lee and defendant Sloan examined the combine, Lee found a hole in the pan and observed that it would do no good to put oil in the motor.
There was a conflict as to the testimony regarding what was said at this time by Lee and by Sloan. Defendant Sloan testified that Lee stated that Sloan would not have to stand the expense of that condition. Lee testified that he made no statement as to who would stand the expense of the repair to the hole in the pan or any other repairs. The combine was then towed by a tractor into a neighboring farmyard and Sloan, Blade and Lee went to Monmouth to the implement store which originally sold the combine to Blade and Lee, and had serviced it just prior to the sale. At that store, all of the parties discussed what parts were needed to repair the combine. The repair order was written up in Sloan's name, although Sloan testified that he did not participate in the negotiations as to the repair. Others testified that all parties participated in such discussions. While the parties were at the implement store, defendant Sloan first told Blade and Lee that he had stopped payment on the check he had given for payment on the combine. The implement dealer had requested that the machine be brought in to see what parts were needed, and defendant Sloan asked to be called when the machine was torn down. He later returned in about a week and saw the combine torn down and observed the damaged parts. The damage to the motor of the combine was extensive.
In the action filed in the instant cause, plaintiffs Blade and Lee sued to recover the amount of the sale of the combine and alleged a claim in one count under a contract theory, and in the second count alleged an action to recover on the check together with interest. Alternative counts sought damages for injury to the combine caused by the negligence of defendant and his hired man.
The record discloses that the mechanics employed by the implement dealer testified that the combine had been in their shop for a checkup, and that any necessary repairs to put it in good operating condition were made a week prior to the sale. Such testimony indicated that the work was done and that a crankshaft oil seal was replaced, the valves were ground, and the motor was tuned. The testimony indicated that when the work was completed, the combine was working properly and there were no apparent defects which would interfere with the operation of the combine. There was specific testimony that there was no problem with the weld and that any leakage problem from either outside or inside the block could have been detected from the condition of the oil when the oil in the motor was changed. Blade and Lee both testified that they knew of no defect in the combine when it was sold and that the weld had held for a year and a half and had given them no problem. There was testimony that the damage to the motor was in no way related to the weld in the block. The record indicated that the damage to the motor was caused when the governor on the motor burned out or malfunctioned which caused the motor to speed up and eventually, when not stopped, to fly apart. There was evidence that if this problem of a malfunctioning governor was not detected within two or three minutes after it began, serious damage of the type actually involved in the instant case could result to the motor. It was also disclosed that there was no means of determining when the governor would malfunction and that it could happen at any time or it might never happen.
Following such hearing by the trial judge without a jury, the court found for the plaintiffs for the recovery of $7,325 and for interest at the rate of 5% in accordance with the statute (1967 Ill Rev Stats, c 74, § 2). On appeal in this Court, defendant seeks to reverse the finding of the trial court as being against the manifest weight of the evidence. Defendant had also filed a counterclaim for time and expenses incurred. The questions before us reduce themselves, basically, to whether there was an express warranty; the extent of the express warranty; and whether the finding of the trial judge that there was no breach of warranty was against the manifest weight of the evidence.
It is apparent that there was an express warranty at the time the combine was auctioned. From the record it is clear that the warranty which was made was that the machine was "in good repair and ready to go into the field" to combine corn. Both parties to this cause refer to the Illinois Commercial Code (1967 Ill Rev Stats, c 26, § 2313), which provides as follows:
"(1) Express warranties by the seller are created as follows:
"(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
"(b) Any description of the goods which is made part of the basis for the bargain creates an express warranty that the goods shall conform to the description."
The subsequent section of the act simply provides that it is not necessary that the seller use such words as "warrant" or "guarantee" to create an express warranty. The warranty in the cause before us was limited to the condition of the combine at the time of sale and there was no warranty that the combine would continue in that condition for any specific number of days, weeks or months. The machine was a used machine and the seller warranted as to its present condition, but it did not amount to a guarantee of the future operation of the machine. To the extent we have indicated, however, there was an express ...