79 Wash. 366 | Wash. | 1914
Action to recover damages for an alleged breach of an executory contract for the sale of cement. The plaintiff had a contract with the Northern Pacific railway company to construct a passenger station in the city of Tacoma, in accordance with certain plans ■ and specifications. Much of the work consisted of reinforced concrete walls which the plaintiff’s contract with the railway company required should be built of Portland cement, of a quality specified in the contract, as follows;
“Cement, when not otherwise specified, shall be Portland of the Vulcanite, Atlas, Lehigh, Alpha, Saylor or other brands, from approved manufacturers, that will fulfill the standard tests of the architects. It shall be inspected by a firm approved by the architects, either at the mill or at the site, and five (5) cents per barrel shall be allowed by the contractor for this inspection.”
Then follow tests substantially the same as those hereinafter set out in the plaintiff’s order for the cement from the
“Aug. 20, 1909.
“Messrs. Stebbins, Walker & Spinning, Tacoma, Wash.
“Gentlemen: — We herewith confirm our order for fifteen thousand barrels or more of Atlas cement to be delivered to us in the care of the Northern Pacific railroad at St. Paul, for $1.40 per. barrel less 30c per barrel for empty sacks. This cement is purchased subject to the following tests as specified by the architects for the Tacoma depot:
(b) Tests.
(1) Fineness: On No. 100 sieve of 10,000 meshes per square inch (Stubbs wire gauge) 92% must pass through.
(2) Initial Set: Initial set as determined by time re-
quired for cake of plastic neat cement to bear wire % inch diameter loaded to weigh four ounces without appreciable imprint, shall not be less than 45 minutes from time of adding water.
(3) Final Set: Final set as determined by the time
required for cake of plastic neat cement to bear 1-24 inch diameter loaded to weigh one pound without appreciable imprint, shall not be more than five hours from time of adding water.
(4) Soundness: Cold water test. Pats of plastic
paste about three inches in diameter by % inch thick at center with thin edges, kept in moist air until final set and for the balance of 28 days in water of temperature approximately 65 degrees Fahr. shall not crack, warp nor soften.
(5) Neat Tensile Test: Briquets of cement paste
mixed five minutes with minimum amount of water necessary fto make mortar thoroughly soft and plastic at the end of 24 hours, break at not less than 125 lbs. per square inch and at the end of 7 days, break at not less than 400 lbs. per square inch.
“Please wire immediately and have the company ship 1,000 barrels at once. Yours truly,
“Hurley-Mason Company,
“By Chas. B. Hurley.
*369 “Tacoma, Sept. 21, 1909.
“Hurley-Mason Co., City.
“Gentlemen: — As per verbal agreement between your Mr. Hurley and the writer, we propose to deliver to you Atlas Portland Cement under the following conditions:
“The Hurley-Mason Co. shall be known as the purchaser and Stebbins, Walker & Spinning shall be known as the seller in the following paragraphs:
“First: The seller agrees to furnish the purchaser and said purchaser agrees to accept from the seller the Atlas Portland Cement herein specified in the quantity of fifteen thousand (15,000) barrels to be delivered as hereinafter set forth. It being understood and agreed between the parties herein that the seller is to be under no obligation to make shipment in excess of five thousand (5,000) barrels in any one month. Shipment of cement herein specified to be made in carload lots. Entire quantity required to be ordered forward in time for shipment prior to April 1st, 1910 . . .
“Second: That the seller will furnish under this contract Atlas Portland Cement that will conform to the requirements of the specifications covered by your letter of August 20th, 1909, to the seller which becomes a part of this contract. All claims of the purchaser upon the seller must be made in writing, and filed with the seller within five (5) days after the cement is received; failure to file a claim within the time allowed will be acknowledgment by the purchaser of the receipt of the cement in good condition and in the quantity specified in the bill of lading and invoice.
“Third: That the seller will furnish Atlas Portland Cement required under this agreement at the following price, to wit: f. o. b. cars, St. Paul, Minn., one dollar forty-five cents ($1.45) per barrel in cloth bags.
“Fourth: That the seller will purchase Atlas cloth bags at seven and one-half cents each, subject to the following conditions: [No question arises from the conditions which
follow. We omit them.]
“Yours very truly,
“Stebbins, Walker & Spinning, “Per L. R. Walker.
“The purchaser agrees to accept from the seller Atlas Portland cement subject to the conditions set forth above.
“Hurley-Mason Co.,
“By Chas. B. Hurley, Prest.”
The plaintiff claimed damages in the sum of $4,114.66, including the cost of new cement, sand and gravel used in replacing the concrete taken out, the labor of tearing it out,
In our discussion we shall proceed upon the assumption that the cement, for the damages occasioned by the use of which the respondent sued, would not have met the tests prescribed in the contract at the time it was delivered to the respondent at Tacoma. We shall assume that this was sufficiently shown by the tests of the remainder of the cement made after the rejection of the work by the railroad company’s architect. Such was the effect of the court’s finding. The view which we take of the law of the case makes it unnecessary to review the evidence upon which this finding was based.
On the law of the case, appellant contends that the facts do not establish a warranty, but merely a sale of cement to be accepted upon a test by the purchaser. The respondent contends that the judgment should be sustained upon two elements of warranty; an express warranty that the cement would comply with the five tests specified in the contract, and an implied warranty that the cement would be reasonably fit for the known purpose for which it was purchased. These contentions present three questions, the solution of which must be determinative of this case. They are these: (1) Upon whom, as between appellant and respondent, was the duty of making the tests, and when and where? (2) Was the provision that the sale was subject to the given tests a warranty collateral to the contract, surviving acceptance of
I. In determining who, as between the appellant and respondent, was to make the tests and when and where the tests should have been made, we must look to the terms of their contract and to the situation of the parties and of the subject-matter. The contract provided: “This cement is purchased subject to the following tests as specified by the architects for the Tacoma depot.” The five specified tests are then set out. These words were the words of the respondent. They were contained in its order. They were used for its own protection and must be construed with reference to that purpose. The respondent knew that it was obligated to use no cement that would not meet these tests. It knew that it was obligated by its contract with the railway company to pay for an inspection by the application of these tests at the rate of five cents a barrel. It knew that, under its contract with the railway company, these tests were to be made “either at the mill or at the site” of the depot “by a firm approved by the architects.” It knew that an inspection by the appellant would not be binding upon the railway company and would be no protection to the respondent. It therefore purchased the cement subject to the tests for which it was already, and in any event, obligated to pay. On the other hand, the appellant was not a manufacturer but a dealer. The contract was executory. The cement was not at hand. It is fairly inferable that it was not then even in existence. The cement was not in the appellant’s possession and both parties knew that it never would be prior to its delivery to the respondent. Respondent knew that the cement was to be made at the mill of the Atlas Portland Cement Company, at Hannibal, Missouri, and furnished to the respondent “f. o. b. cars St. Paul, Minn.” The appellant would have no opportunity to test the cement. It, there
As to the place of the tests, it is obvious that the respondent could select its own place. The appellant could not insist upon these tests being made prior to its delivery of the cement to the respondent. To that extent, it took the risk of the rejection of the cement after its delivery. The respondent, however, could not select its own time for making the tests. No time being specified in the contract, it had only a reasonable time after delivery. It was certainly contemplated that the tests should be made before the use of the cement, since it is obvious that the use of the cement would render the specified tests impossible. The appellant contends that those tests should have been made within five days after the cement was received, because the contract provides that all claims of the purchaser upon the seller must be made within that time. This provision, however, applied only to the condition in which the cement was received, not to its quality. It could not apply to a failure to meet the tests, since some of the tests required a longer time than five days for the making.
II. Was the provision that the sale was subject to the tests a warranty collateral to the contract, or was it a condition of the contract? The respondent contends that it was a warranty of quality. We do not so construe it. The
“A warranty is an express or implied statement of something which a party undertakes shall be part of a contract, and, though part of the contract, collateral to the express object of it. But in many of the cases, the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a noncompliance with a contract which a party has engaged to fulfill.”
The author adds:
“There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability; and if this condition be not performed, the purchaser is entitled to reject the article, or, if he has paid for it, to recover the price as money had and received for his use; whereas, in case of war*375 ranty, the. rules are very different.” Benjamin, Sales (7th ed.), § 600.
The American note to the text points out the difficulty of laying down any definite rule for determining when a stipulation is a condition of the contract itself and when an independent warranty collateral to the agreement, as follows:
“In determining whether certain duties, liabilities, or stipulations, either express or implied, on the one side, are strictly conditions essential to the liability of the other party on his stipulations or promises, or are only independent and separate covenants, the breach of which may give a right of action, or counter-claim, but which does not prevent or extinguish a cause of action against the other, no other rule — worthy of the name of rule — can be laid down than that it is always a question of the intention of the parties, manifested by the expressions they have used as applied to the subject-matter of the contract, and read in the light of surrounding circumstances.” American note to Benjamin, Sales (7th ed.), p. 595.
Judged by the situation of the parties and their relation to the subject-matter, it is clear that the provision for tests in the contract before us is a condition of the contract and not a collateral warranty. The terms of the contract lead inevitably to the same conclusion. An executory contract for the sale of an article tested to a given standard is a very different thing from an executory contract for the sale of an article subject to given tests. The one is a collateral warranty placing the consequences of a failure of the article to perform to the given standard upon the seller, so that the purchaser’s remedy survives his acceptance. The other is a condition of the contract precedent to acceptance, placing the consequences of the failure to inspect or make the tests upon the purchaser. It furnishes its own remedy, namely, a rejection of any article not meeting the tests as not fulfilling the contract. Obviously, the remedy on such a condition precedent cannot survive acceptance. The purchaser failing to make the tests prior to acceptance has no
“But the stipulation in respect to the quality and condition of the article, when delivered, constituted no express warranty. The contract was executory, for the sale of a growing crop of tobacco, to be delivered the spring following, well cured and in good condition. The article bargained for, and to be furnished in the future, was a merchantable crop of tobacco. This was what the vendor agreed to sell and the vendee to purchase. It was the sale of a particular thing by its proper description merely; and the descriptive words used for defining the thing agreed to be sold were of the substance of the contract, not collateral to the main object of it . . .
*377 “In cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages, on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by the vendee after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. The retention of the property by the vendee is an assent on his part that the contract has been performed. The delivery of property corresponding with the contract is a condition precedent to the vesting of the title in the vendee. The parties understand that the vendee is not bound to accept the property tendered, except upon this condition. This the vendee is to determine upon the receipt of the property.”
It has sometimes been intimated that the foregoing decision was overruled by the same court in the case of Day v. Pool, 52 N. Y. 416, but we do not so read that case. In Day v. Pool, there was a sale of the rock candy syrup with an express warranty that it would not “crystallize or the sugar fall down.” There was nothing to indicate that the sale was made subject to inspection or test. The court held the provision in the contract as to the character of the syrup an express warranty surviving acceptance and not a condition satisfied by acceptance. Referring to Reed v. Randall, supra, the court said: “That case would have been decided the other way had there been an express warranty as to the quality of the tobacco,” thus clearly distinguishing that case rather than overruling it. The authority of Reed v. Randall is recognized in the comparatively recent case of Carleton v. Lombard, Ayres & Co., supra. In Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am. St. 712, the action was brought to recover damages for breach of an alleged warranty on an executory sale of a number of cases of “Talbot Extra Fine Peas, Sieve 23-24.” It appeared that such sales were, by the custom of the trade, made subject to inspection. The plaintiffs, on delivery, accepted the goods, some ten days later discovered their defective quality, but continued to handle them for some months, when they
“The defendants were bound to .deliver the quality of goods called for by the contract, which was the highest grade they packed; and, if an inferior article was shipped, the plaintiffs had a reasonable time for inspection, rescission and offer to return. This action does not fall within that class of cases where a dealer sells an article, describing it by a name of commerce, the identity of which is not known to the purchaser, and which he cannot ascertain by inspection, and where a warranty is, therefore, implied that the article sold is that described.”
After considering many decisions pointing out the distinction between a condition of the contract and a collateral warranty, the court concluded: ,
“Treating the general description in the case before us as a part of the contract of sale, the plaintiffs were abundantly protected; and, if they failed to inspect, rescind, and return the goods, it is because they neglected to avail themselves of the remedies which the law afforded them. In cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished fails to correspond with the contract does not survive the acceptance of the property by the vendee after opportunity to ascertain the defect.”
•"""it seems to us a sound rule, deducible from the authorities, that, where an executory sale is made subject to inspection, an acceptance by the buyer, with or without inspection and without notice to the seller of any defects or offer to return, is a waiver of any claim for damages on account of defects which might have been discovered upon inspection by any ordinary tests or by the tests prescribed by the contract, in the absence of an express warranty intended to survive acceptance. Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335; McCormick v. Sarson, 45 N. Y. 265, 6 Am. Rep. 80; Mason v. Smith, 130 N. Y. 474, 29 N. E. 749; Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. 428; Fairbank
In the case last cited, there was, also, an additional express guaranty which would have survived acceptance. Such acceptance is an admission that the contract has been performed (Beck v. Sheldon, 48 N. Y. 365), in the absence of. fraud of the seller preventing or interfering with inspection by the purchaser (Dutchess Co. v. Harding, 49 N. Y. 321), and in the absence of latent defects not discoverable by inspection or prescribed tests. Carleton v. Lombard, Ayres & Co., supra.
The respondent contends that there was an implied warranty that the material furnished would be fit for the purpose for which it was purchased. It is not claimed, however, that the cement furnished possessed latent defects not discoverable by the stipulated tests, but only by actual use. The respondent, in making this contract, prescribed the tests. It must be held to have assumed, since it exacted no specific warranty of fitness, that cement meeting these tests would have met the respondent’s purpose. Under the circumstances, it is clear that the specific stipulation of tests involved no warranty of what cement meeting those tests would do or produce when placed in a wall. In Beck v. Sheldon, supra, the defendant ordered certain iron by a specific brand and numbers for the making of stoves. The iron furnished bore those numbers and there was no evidence that it was improperly branded. The iron was delivered and used. None was returned nor a return offered. In an action for the purchase price, the purchaser claimed damages for the poor quality of iron delivered, insisting that the iron should have been suitable for the purpose intended. The court said:
“It is said that the fracture showed a grain or crystallization, and a character of iron which was not sustained by*380 its result when smelted. So the judge finds, and such was the evidence. He finds also that the only contract was, that Poughkeepsie pig iron Nos. 1 and 2 should be furnished, and that the pig iron, according to the contract, was duly delivered by the plaintiff to the defendants. There was, therefore, no contract either that iron should produce particular results when smelted, or that the actual result should be the same with that indicated by the fracture. On this point, also, the defendants acted upon their own judgment, receiving neither guaranty or representation from the seller. If their expectations are not realized they must themselves bear the loss.”
In International Pavement Co. v. Smith, Beggs etc. Machine Co., 17 Mo. App. 264, the plaintiff purchased certain boilers which the defendant undertook to deliver, tested to 200 pounds to the square inch, and furnish the testers’ certificate before shipment. The certificate was furnished. The plaintiff contended that the contract implied a warranty that the boilers were reasonably fit for the purpose for which they were purchased. The court said:
“The matter of implied warranty which the plaintiff assumes is itself an integral element of the express warranty, into which it is merged, and by which its effect is circumscribed. The plaintiff’s complaint is that the boilers were not strong enough — or sufficiently capable of sustaining pressure — for the purposes to which they were to be applied. It was to this specific quality of strength that the express warranty was directed, and in which the extent of the defendant’s liability was limited by the words used.”
While in the case just quoted the contract contained an express warranty placing the duty of testing upon the seller, we can see no reason why a sale subject to test by the purchaser would not also exclude any implied warranty as to things which the test would disclose. See, also, Thompson v. Libby, supra. According to the great weight of authority, there is a distinction between executory sales by manufacturers and executory sales by dealers; the rule being that, on a sale by a manufacturer, there is an implied warranty
In the case before us, the appellant was not a manufacturer, but a dealer. It sold the cement subject to inspection, according to tests prescribed by the purchaser. The purchaser failed to make the tests, though it was fairly inferable from the record that it knew the appellant was not making the tests and had not tested any of the cement. It is probably true that, on a sale even by a dealer without specific warranty and not subject to inspection or test, there is an implied undertaking that the thing sold shall be reasonably fit for the purpose intended, where that purpose is/ known to the seller; but, on the record here, there is no room for the application of such a rule.
The authorities cited by the respondent are clearly distinguishable from the case here. In Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. 890, there was involved a sale of. bricks by the manufacturer for the construction of coke ovens. The sale was not expressly subject to inspection or test and the order for the bricks negatived any implication to that effect. It contained the caution, “I want you to be very careful about the quality. Do not send anything but what is A No. 1, and send quick as possible;” and again, “This is a trade you will want to hold and you can only do it by sending nothing but the best.” The court held that the manufacturer, in filling this order,
We are driven to the conclusion that, under the contract here in question, the duty of applying the tests prescribed was upon the respondent; that the provision that the sale was subject to test was a condition precedent, the remedy upon which did not survive acceptance; and that there was
The appellant admits that it owes the respondent $494.76 for freight on certain of the cement from Hannibal, Missouri, to Minneapolis, Minnesota, and the further sum of $2,339.62 for sacks returned. The court found that these sums have never been paid. The respondent admits a counterclaim in favor of the appellant of $2,900. The court found this amount as $2,913.37. Eliminating from the court’s findings the consequential damages which we hold under the contract the respondent cannot recover, there is apparently due to the appellant a balance of $79.
The judgment is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.
Crow, C. J., Main, Gose, and Chadwick, JJ., concur.
