22 Wash. 220 | Wash. | 1900
I'he opinion of the court was delivered by
-This action was brought to recover a balance of $701.68 alleged to be due upon an open account for certain beer sold by respondent’s assignor, the Seattle Brewing & Malting Co., to the appellant between April 10, 1896, and August 26, 1897. The answer admits the correctness of the- account, but, as an affirmative defense, alleges that the beer was sold by the respondent’s assignor to appellant for export trade in Central America; that.at the time of the sale said assignor undertook and agreed that the beer should be put up in proper condition for that trade, and properly bottled and corked; that in one lot of 285 cases of beer sold in April, 1896, for which appellant
In his reply to the matters set forth in this affirmative answer, the respondent failed to deny any of the allegations, excepting those relating to the defective bottling, corking, and packing of the 150 cases, and the allegations relating to the appellant’s inability to realize more than $680 thereon, and in relation to the reasonable value in Central America of 150 cases of beer properly bottled, corked, and packed. So that under the pleadings we have a warranty pleaded and admitted, and a breach thereof alleged and denied. At the conclusion of the evidence the trial court dismissed the jury and rendered judgment in favor of the plaintiff for the full amount of his claim.
At the trial the defendant (appellant here) produced as a witness one J. E. Ohilberg, who testified that during all of the time mentioned he was the general agent of appellant in Central America, and also the agent of respondent’s assignor for the sale of its beer; and he stated minutely and in detail wherein it was defectively bottled and corked, — among other defects, that there appeared to be rotten seams running through the corks, which permitted the gas to escape, thereby rendering the beer flat and worthless. He also testified that for a time a portion of the beer was intrusted to one Graham, at Guatemala City, for sale, inasmuch as the witness was then about to go north to Seattle, which was in July, 1896; but upon his return to Central America the latter part of October, 1896, he found that Graham had sold only two or three cases, and there was considerable complaint about it, and “also some that he had bought from the brewing company himself. I took our beer from him . . . and placed it on sale myself. I had received only 148 cases, however, and found that, whatever place we would sell it, it would be returned, or else big reclamations would come back on account of defective corking, the beer being flat.” And then he proceeded as before stated to specify in detail, che' worthless character of the bottling and the reason for it, viz., that it was improperly bottled and corked.
Upon cross examination of this witness, counsel for the respondent produced a letter admittedly written by witness in Guatemala City, December 19, 1896, addressed to plaintiff’s assignor, which letter was by respondent introduced in evidence. The letter refers to a number of accounts and transactions between the brewing company and different customers in Central America. It was written by the witness, not as the agent for the defendant, but of the
(1) “ Saw the Ellis firm in San Salvador, though the principal was away, and was told that they had some of our beer still on hand,- — why, I cannot understand, as Imbode was able to sell 135 cases, consigned to the S.S. Co., right under their noses. As his is all gone, and the demand for Seattle beer is good in Salvador, they should have it closed out very soon. They seem sore, for some reason or other, though it seems to me that the soreness should be on the other side ”
(2) “I have not seen Graham again since returning here, and do not know whether he has sent you money or not, though he said he expected to send you a statement and remittance before I left. As I have no authority in this matter, I have not said much to him. If he has not sent you the money, I think that it would be advisable for you to send the collection to the Banco Americano here, with power of atty. to collect same, and instructions to place the same in hands of their atty. for collection, should he not pay it. Avoid mention of my name when you do this, as it would only serve to make Graham mad and would do no good; and in all probability I will be somewhere else when it comes, and he would want a stand off to see me. He has plenty of money, and can pay, and would have long ago were it not for the flat beer. De Heuf could tell you something of it, as he was here when it was being sold.”
On redirect examination, counsel for appellant requested the witness to explain these paragraphs, and to state what shipments they referred to, — ^whether the shipment in question or some other. Upon objection of respondent’s counsel, the court ruled that the letter spoke for itself and was not susceptible of explanation. This constitutes the first ground of error assigned.
It is contended that the judgment was right irrespective of the ruling in regard to the letter, because it is asserted that no claim was made by the appellant on account of defective bottling until after the date of all of the items of the account, and after payments thereon had been made;
We cannot assent to /the claim made by respondent’s counsel that the answer only sets up an implied warranty and a breach thereof. On the contrary, we think sufficient has been stated to show that the answer alleges an express warranty, which was admitted by a failure to deny. The case should have been permitted to go to a jury, and a verdict in favor of the defendant would not have been without sufficient legal evidence to support it. The warranty being admitted, and there being explicit testimony tending to show a breach, a clear case was made for the consideration of a jury.
The judgment will be reversed and the cause remanded, with directions to award a new trial.
Reavis, Dunbab and Eullebton, JJ., concur.