Appeal, No. 150, Jan. T., 1952, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1949, No. 2849, in case of Elliott-Lewis Corporation v. York-Shipley, Inc. Judgment affirmed.
G. Ruhland Rebmann, Jr., with him Richard V. Zug, George B. Clothier, and Edmonds, Obermayer & Rebmann, for appellant.
Frederick A. VanDenbergh, Jr., with him Saul, Ewing, Remick & Saul, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This is an action in assumpsit for damages for breach of an express warranty. The trial Judge who heard the case without a jury, found a verdict for the plaintiff in the sum of $3096.85. All of the defendant's exceptions were dismissed by the Court en banc, and judgment was entered on the verdict. From this order and judgment the defendant appeals.
The basic question is whether defendant's printed catalogue setting forth the capacity of its boiler was an express warranty and if so, whether such warranty was clearly excluded under the franchise agreement previously made between plaintiff and defendant.
On December 20, 1945, defendant, who is a manufacturer of a patented oil burning device, entered into a franchise agreement with plaintiff who is a dealer or distributor. The agreement provided as follows:
Sec. 8. "The Manufacturer shall repair or replace, without charge, any parts manufactured or supplied by it which may prove defective from poor material or workmanship, within one year from date of installation, provided the Distributor... immediately forwards such alleged defective parts prepaid to the Manufacturer,
accompanied by the Manufacturer's returned parts from... The foregoing guarantee constitutes the only guarantee or warranty given or assumed by the Manufacturer, and it is agreed that there are no implied warranties."
Subsequently the defendant in the regular course of distribution published and disseminated its circular or catalogue in which it offered to the trade a Steam-Pak Generator, SPL 50-5 with a further statement that it had a specified heating capacity of 7300 EDR steam per hour. Plaintiff purchased this boiler relying upon the manufacturer's statement of its capacity. This reliance upon the manufacturer's statements of capacity was in accord with the general practice in the trade because the manufacturer of such an article possesses virtually exclusive knowledge of the quality and capacity of its product and the buyer little or none. The Judge, sitting as a ...