63 Wash. 550 | Wash. | 1911
This is an action to recover the balance due upon a quantity of brick. From a judgment in favor of the plaintiff, the defendant has appealed.
The respondent sold to appellant four car loads of pressed brick, f. o. b. cars at Dickinson, North Dakota. The shipments began April 14, 1906, and ended upon August 16, 1906, that being the date of the last shipment. The suit was commenced in September, 1909. The appellant admitted the sale and delivery of the brick, and alleged affirmatively that the brick was sold and delivered to be used in the Federal building at Seattle, subject to inspection and acceptance by the officials of the government; that brick of the value of $132.29 was rejected by the contractor and government officials for nonconformity with samples furnished; that it stored the rejected brick at the request of the respondent, incurring a cartage liability of nine dollars; that the reasonable value of the storage is $21; that in consequence of the failure of the respondent to supply brick of the quality and size of the samples furnished by it to the contractor and government officials, the appellant has become liable for, and has been charged by the contractors, the sum of $252 for extra labor in sorting and laying the brick. The court allowed the appellant a set-off of $15 per thousand on 7,000 brick, $105, and $100 for expense incurred in cleaning and sorting the rejected brick, and entered judgment for the respondent for $638.40, with interest from October 9, 1906.
The appellant first contends that this was a sale by sample, and that in such cases “there is an implied warranty that the bulk of the goods shall correspond in kind and quality with the sample exhibited.” If the premise were sound, the rule stated would follow. The evidence, however, is that, while the respondent knew that the brick was purchased for use in the Federal building, and forwarded samples, it expressly advised the appellant that the five samples were to be considered as a whole; that if it were required to furnish brick equal to the best sample, it could not fill the order; that it
On April 6, 1908, sixteen months after the date of the last shipment, the appellant advised the respondent that 3,484 brick of the third shipment had been rejected by the contractors. This was the first advice of the quantity rejected. On May 29, 1906, the appellant wired the respondent: “Number of brick condemned. Not according four samples accepted. Poor quality, badly discolored, etc.” On the same
The testimony of the appellant’s witness Mr. Grant, who was superintendent of the construction of the Federal building, makes it clear that a part, if not all, the condemned brick were rejected because they did not conform to the best of the five samples. A Mr. Mathews, foreman for the contractors, testified that the expense of “resorting and gauging” was about $300, and that the greatest expense was in cleaning the brick. Mr. Duhamel, one of the contractors, testified that some of the brick first shipped were dirty and seemed to have been on hand for a long time; that the next shipment varied in size and color, and that the damage consisted of the extra labor in sorting “and labor on the brick.” Respondent’s witness, Dr. Brannon, testified that on August 13, 1907, a year after the date of the last shipment, one of the contractors, Mr. Duhamel, told him that the added expense of sorting and laying the brick would not exceed $100. This statement is not denied by the contractor. The appellant knew that the five samples varied in quality; that “dirt” had blown into the brick, and that “all” were “soiled more or less.” As the trial court pointed out, there is no definite testimony in the record as to how the brick shipped differed in color and size from what would be reasonably anticipated from a mixture of the several samples. We think, upon the entire record, the amount allowed as a set-off is ample. Indeed, a much less allowance could have been made.
It is finally said that the court erred in allowing interest prior to the date of the entry of the judgment. There is nothing in the record to indicate that the parties did not contemplate a cash sale. The purchase price was agreed upon prior to the date of the first shipment. Interest is allowable
The judgment is affirmed.
Dunbar, C. J., Fullerton, Mount, and Parker, JJ., concur.