105 Wash. 401 | Wash. | 1919
This action was brought to recover damages for the loss of a number of trees in a prune orchard. The complaint alleged that the damages were
‘ ‘ Trunks of fruit trees painted with Avenarius Carbolineum will not be troubled with borers and will become healthier.”
The complaint alleged that, with knowledge of this representation and in reliance upon it, the plaintiff purchased this substance and applied it to the prune trees in the orchard, and that the application of this Avenariiis Carbolineum was for the purpose of destroying and exterminating borers, some of which had begun to appear in plaintiff’s orchard, and for the purpose of rendering said trees healthier; but that, instead of so doing, the application caused a large number of the trees to die, and injured a large proportion of the remaining trees so as to render them worthless and make it necessary for the plaintiff to dig them up and set out- new trees in their place; that the trees thus injured and destroyed were of seven years’ growth, and that the plaintiff had lost the time required to replace them with other trees of equal growth, and had been damaged by the destruction and injury to the trees in the sum of $15,000. The answer admitted the incorporation of the defendant, and admitted that borers were harmful to fruit trees and, if not exterminated, would kill the same, and denied the other allegations of the complaint. Upon these issues, the case was tried to the court and a jury. At the close of all the evidence, the court, upon the defendant’s motion, directed a verdict in favor of the defendant and thereafter dismissed the action. The plaintiff has appealed.
“Trunks of fruit trees painted with Avenarius Carbolineum will not be troubled with borers and will become healthier.”
Before purchasing the twelve gallons, the appellant wrote a letter to the Portland Seed Company inquiring if Avenarius Carbolineum would kill borers and make fruit trees healthier, and thereupon purchased from the Portland Seed Company the Avenarius Carbolineum which was afterwards put upon the trees. There was evidence to the effect that the trees after-
If we may assume that there was sufficient evidence to go to the jury that the preparation which was purchased by appellant and used upon the prune orchard destroyed the trees, it is plain that this respondent was not liable therefor. It was not shown that the Avenarius Carbolineum which was purchased by the appellant was sold by the respondent or was ever in its possession. It is not claimed by the appellant that it was purchased from the respondent, and it is conclusively shown that respondent was not the manufacturer and had no connection with the manufacturers, and did not know the ingredients. Respondent was simply an agent for the sale of the preparation, and so far as the record shows, the Portland Seed Company, from whom the appellant purchased, was likewise an agent. The appellant relies upon the case of Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L. R. A. (N. S.) 213. In that case we said:
“It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate 'vendor. To. this rule, certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind; (2) where the defendant has been guilty of fraud or deceit in passing off the article; (3) where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.”
We are satisfied, therefore, that the trial court properly directed a verdict in favor of the respondent.
The judgment must be affirmed.
Main, Parker, Fullerton, and Holcomb, JJ., concur.