126 Wash. 676 | Wash. | 1923
— In this proceeding, the Wapato Fruit & Cold Storage Company, a corporation, as plaintiff, sued J. P. Denham upon two causes of action; the one to recover a balance due for the storage of certain grain, and the other to recover the purchase price of some seventy-five sacks of potatoes sold and delivered by it to Denham. Denham, for answer, made no denial of the allegations of the complaint, but set
The cause started as a trial before the court sitting with a jury.- The defendant, having the affirmative of the issue, assumed the burden of proof and introduced testimony in substantiation of the allegations of his answer. At the conclusion of his testimony, the court sustained a challenge to the sufficiency of his evidence to constitute a defense, and directed the jury to return a verdict in favor of the plaintiff for the amount of its demand. From a judgment entered on the verdict, Denham appeals.
The evidence on the part of appellant tended to show that he owned a farm in the vicinity of the respondent’s place of business which was under the charge of one Du Puis. Desiring to plant some eight and one-half acres of his land to an early variety of potatoes, he went to appellant and made known his desire. The appellant, through an agent in charge
Sometime later Du Puis, the appellant’s farmer, went to the warehouse of the plaintiff for the potatoes and seventy-five sacks were delivered to him which he hauled to the appellant’s farm. Du Puis was an experienced farmer and an experienced potato grower. In preparing the potatoes for planting he discovered that a quantity of them had decayed, and a quantity which he estimates as equal to five sacks, he threw away entirely. On cutting the others into suitable sizes for planting, he discovered that a large quantity of them were diseased and in the process of decay. This quantity he estimated as three-fourths of the whole. Du Puis, as an experienced potato grower, concluded the potatoes were unfit for planting, and before doing so called the appellant upon the telephone, told him of their condition, and advised him not to plant them. He testifies that the appellant told him to plant
The evidence is that the respondent was not informed of the defective condition of the potatoes until after they were planted and had failed to germinate. It is in evidence also that the respondent had no knowledge of their defective condition, either at the time the contract for their sale was entered into or at the time of their delivery. The agent selling the potatoes, who was called as a witness by the appellant, testified that an inspection of them did not disclose any defect in their condition; that, when they were first purchased from the grower, he had taken some of them to his house for eating, and had found them solid and firm throughout.
The trial judge, in passing upon the challenge to the evidence, expressed the opinion that there was no warranty on the sale of the potatoes, either expressed or implied, and that the rule of caveat emptor applied. He, however, rested the judgment on the conclusion that, since the appellant planted the potatoes after knowledge of their defective condition, without informing the seller of such condition and after he had been advised by his own experienced grower that they were unfit for seed, he planted them at his own risk, and cannot now complain that they were not suitable for the purpose for which he purchased them.
But we cannot agree with the conclusion of the judge in its entirety. It is a general rule that, on a sale of
See, also, note to Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 132 N. W. 902, 37 L. R. A. (N. S.) 79.
In this instance, we think the facts were such as to justify ■ an implied warranty. The purchaser made known to the seller the purpose for which he desired the potatoes, and when the seller sold him potatoes for that purpose, a warranty arose from the circumstances of the sale. And, since the sale was executed, the warranty survived the acceptance of the potatoes. Grisinger v. Hubbard, 21 Idaho 469, 122 Pac. 853, Ann. Cas. 1913E 87.
These considerations lead to the conclusion that the trial court was in error in holding that there could be no offset against the purchase price. The potatoes being worthless for the purposes for which they were purchased, there was at least a partial failure of consideration which the purchaser could urge in an action brought against him to recover the purchase price. Nor do we think the form of the pleading changed the situation. The pleading was in its effect a plea of failure of consideration as well as a claim of consequential damages, and was treated by the parties themselves as raising the issue. The trial court, therefore, should have given it the same effect, or should have directed a trial amendment.
But we think the appellant’s conduct barred a recovery of any consequential damages. The appellant had
“In Passinger v. Thorburn, 34 N. Y. 634, the defendant sold cabbage seed under an express warranty that it was the seed of a variety known as ‘Bristol cabbage,’ which it proved not to be. The damages were held to be the value of a crop such as should have been produced by the seed if it had conformed to the warranty, deducting the expense of raising the crop and the value of the one in fact raised.
“But I think no case can be found in which consequential damages have been recovered where a party, as in this case, had knowledge of the inferior character of the seed before sowing the same; in such case, the party furnishing the seed is not liable for damages resulting to either the crop or the land in consequence of the use of such inferior seed.”
The judgment of the trial court is reversed and the cause remanded for further proceedings.
Main, C. J., Tolman, Parker, and Pemberton, JJ., concur.