123 Wash. 347 | Wash. | 1923
This is an action brought by the respondents, Long & Harris, against the appellant, the Five Hundred Company, to recover in damages as for breach of warranty in the sale of an automobile truck by the appellant to the respondents. In a trial before a jury in the court below, there was a verdict in favor of the respondents, and from the judgment entered thereon the appeal is prosecuted.
The truck, when put to the work of hauling logs, would not stand the strain of transporting its capacity load. The rear axle broke a number of times and was replaced, finally breaking in such a manner as to destroy the housing covering the rear bearings. At about the time of this last break, the respondents notified the appellant to repair the truck so as to make it perform the work for which it was purchased. Shortly thereafter the appellant sent a man for the truck and it was taken to Spokane, where, a few days later, the respondents were summoned to consult with reference
Of the errors assigned, the first to be noticed is that the court erroneously held that there was an implied warranty of the fitness of the truck for the purposes for which it was intended to be used. The contention is that there was a sale of a definite described article, hence no implied warranty of fitness for the purpose for which it was sold, under the rule of the cases of Hoyt v. Hainsworth Motor Co., 112 Wash. 440, 192 Pac. 918, and United States Cast Iron etc., Co. v. Ellis, 117 Wash. 601, 201 Pac. 900. These cases, it is true, sustain the general principle that, where a known, described and definite article is ordered of a dealer, who is not the manufacturer of the article, and an article of the known and described kind is delivered, there is no warranty that the article supplied is suitable for the purpose for which the buyer intends to use it, even though the buyer may have made known to the dealer, at the time he gave the order, the intended use; but we think the rule so announced inapplicable to the facts of the present case. The order here was not for a truck of a specific kind or manufacture, but was an order for a truck suitable for hauling saw logs and timber products. The appellant produced the particular truck and sold it to the respondents, knowing the purpose for which it was
The second contention is that the evidence fails to show that the automobile truck was sold by the appellant to the respondents, but, on the contrary, shows conclusively that it was sold to them by one Hall. The materiality of this is not to us at once apparent, as the truck was concededly the property of the appellant, and, if it was in fact sold by Hall, he sold it as the agent of the appellant. But since the parties have themselves treated it as material, we have examined the evidence on the question. The evidence does, indeed, present an aspect in some respects strange, but we cannot think it so far conclusive as to warrant us holding that it left nothing for the jury to pass upon. As we view it, it was in decided conflict, and was properly submitted to the jury.
The truck was sold on a contract of conditional sale, and a writing was entered into between the parties expressing the agreement, and stating the terms and conditions of the sale with respect to the payment of the purchase price and the remedy of the seller in case default was made therein. It is contended that this contract was complete in itself and stated all of the terms of the sale, and that to admit evidence of án express or implied warranty was to permit a written instrument to be varied by parol. But the general rule is that the existence of a separate oral agreement as to any matter on which a written contract is silent,
On the questions of the agency of Hall, whether or not the truck was defective in construction, and whether the overloading of the truck was the cause of the breaks, the most that can be said is that the evidence was conflicting. There was no such absolute want of evidence as would warrant the court in taking any of the questions from the jury.
On the measure of damages the court gave the following instruction:
“Accordingly, you are instructed that if the jury find from a preponderance of the evidence that plaintiffs were at the time alleged in the complaint, co-partners, doing business under the firm name and style of Long & Harris, and that on or about the first day of February, 1920, the plaintiffs made known to the defendant that they desired to purchase an auto truck for the purpose of hauling saw logs and timber products, and that the defendant sold the plaintiffs an auto truck for the purpose of performing said work, and that thereupon plaintiffs purchased said auto truck from the defendants for the sum of $4,000, and paid down on said sum the sum of $1,720.65; and that there*352 after when said plaintiffs put said auto truck to the use for which it was purchased, the same became unfit and unsuitable for such purpose by reason of a latent defect in the same, to wit, that the rear axle of said auto truck would not stand the strain of carrying and transporting a load of saw logs, and would continually break and that when said plaintiffs purchased said auto truck from the defendant, such defect was not discovered by the plaintiffs upon ordinary inspection, and that thereupon defendant took said auto truck into their possession for the purpose of making alterations and repairs on said auto truck for the purpose of rendering it fit and suitable to haul saw logs and timber products, and that thereupon defendant failed, neglected and refused to make such alterations and repairs and took and retained in its possession such auto truck, then, you are instructed, that plaintiffs can recover in this action such sum as they have paid on the purchase price of said auto truck, not to exceed the sum of $1,720.65.”
This we are constrained to conclude was error. There was not a mutual rescission of the contract of sale; simply a plain conversion by the appellant of the respondents’ interests in the property. Since in this state punitive or exemplary damages are not recoverable except in those instances where the statute expressly makes them so, of which this is not an instance, the ordinary measure of the respondents’ recovery would be the value of the property at the time of the taking, against which the appellant could offset the unpaid part of the purchase price. But this transaction has certain added elements which render this measure inapplicable. Owing to the structural defects of the truck, it was not worth at the time of its purchase the sum the respondents agreed to pay for it, and any correct measure of damages must take into account this fact. On the other hand, the respondents did not return the truck when the defect was first
The appellant cites as sustaining the court’s instructions on the measure of damages the case of Hausken v. Hodson-Feenaughty Co., supra, possibly relying upon the expression found at the bottom of page 613 of the opinion, to the effect that the purchase price of goods may be recovered if the goods are subsequently removed by the seller. But this rule, while applicable to the facts of the case upon which it was rested, is too broad as a rule of general application. As we have said, compensation is the basic measure for the recovery of damages in this state, and where the general rule, as there announced, permits more than this, some modification of it must be made.
The appellant also complains that the court did not submit to the jury its theory of the case; namely, that
Reversed and remanded for a new trial.