128 Wash. 433 | Wash. | 1924
The purpose of this action was to recover for the breach of an alleged express warranty in the sale of a second-hand donkey engine and boiler. The trial resulted in a judgment dismissing the action, from which the plaintiffs appeal.
The respondent, the Markey Machinery Company, is engaged in the machinery business in Seattle. The appellant Yakima Paving Company is engaged in road building in the eastern part of the state and, prior to the date of the purchase of the rig in question, had a contract with the state for the construction of a part of what is known as the Inland Empire Highway, between Waitsburg and Walla Walla. It had installed equipment in a gravel pit near Huntsville for the purpose of getting out sand and gravel, and when this equipment was sought to be operated it was found that the engine and boiler would not perform the work and it would be necessary to procure a new engine and
There is little in this case but questions of fact. The primary question is whether the rig was sold with an express warranty on the part of the machinery company that it was in first-class condition. The evidence upon this question is conflicting, Scott testifying that it was the understanding at all times between him and
“That there was no concealment on the part of the defendant, nor did the defendant represent that the rig would be suitable for defendant’s (plaintiff’s) work; that both parties knew and understood that the machinery was second-hand, and defendant’s representations did not go beyond stating that it had replaced worn parts and put the engine and boiler in good condition.”
Under the evidence, it seems that the trial court was clearly right in finding that the rig was in good condition, that there was no express warranty, and that the purchase was made in reliance upon the inspections made, or caused to be made, by the paving company. In the bill of sale, which was made approximately a week after the entire transaction was closed and the rig paid for, there is a recital that “it is in first class condition.” To support this bill of sale no new consideration passed. As to the reason for its being given, the testimony is in dispute. It was taken in the name of Mrs. A. F. Savage, who apparently had advanced money to the paving company. The fact that it is recited in the bill of sale that the rig was in first-class condition does not furnish a basis of liability. Scott testifies that it was given in pursuance of the understanding at the time the rig was purchased, but this Markey denies, and the trial court found that it was not intended to be a contract between the respondent and the paving company, but that such instrument was given for the purpose of furnishing security to Mrs. Savage. We think the evidence shows that the engine and boiler were in good condition at the time and were reasonably worth the price paid therefor, as found by the trial court. It was also found by the trial court
The judgment will be affirmed.