Moore v. Hubbard & Johnson Lumber Co.

• Decision Date: 19 March 1957
• Docket Number: No. 17191,17191
• Parties: Charles E. MOORE and Charles E. Moore, III, etc., Plaintiffs, v. HUBBARD & JOHNSON LUMBER CO., Defendants, Cross-Complainants and Respondents, B. B. Byard, Arthur C. Vann and John W. Waldner, individually, and as co-partners doing business under the firm name and style of Trinity River Lumber Company, and R. E. Byard, individually, and as doing business under the firm name and style of Trinity River Lumber Sales Co., Cross-Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 794

308 P.2d 794

149 Cal.App.2d 236

Charles E. MOORE and Charles E. Moore, III, etc., Plaintiffs, v. HUBBARD & JOHNSON LUMBER CO., Defendants, Cross-Complainants and Respondents, B. B. Byard, Arthur C. Vann and John W. Waldner, individually, and as co-partners doing business under the firm name and style of Trinity River Lumber Company, and R. E. Byard, individually, and as doing business under the firm name and style of Trinity River Lumber Sales Co., Cross-Defendants and Appellants.

No. 17191.

District Court of Appeal, First District, Division 1, California.

March 19, 1957.

Pedder, Ferguson & Pedder, San Francisco, for appellants.

Ropers & Majeski, Redwood City, for respondents.

FRED B. WOOD, Justice.

As stated by Honorable Edwin J. Owens, the trial judge, in an opinion which he wrote and filed, this is an action 'commended originally by the plaintiff Industrial Assets Co. (a co-partnership) against the firm of Buttress and McClellan (a corporation) and Hubbard and Johnson Lumber Co. (a corporation). Subsequently the defendant Buttress and McClellan filed a Cross-complaint for declaratory relief against Industrial Assets Co. and Hubbard and Johnson. Still subsequently Hubbard and Johnson filed a cross-complaint against defendant Trinity River Lumber Co.

'The situation, as developed by the evidence is as follows: Industrial Assets Co. entered into a project of building a large warehouse in San Jose to be leased to the American Can Co. With this in mind, contact was made with the firm of Buttress and McClellan, a large construction firm with offices in Los Angeles. As a result of preliminary negotiations a contract for the erection of the warehouse was entered into between plaintiff Industrial Assets Co. and defendant Buttress and McClellan. * * * Certain lumber was purchased from defendant Hubbard and Johnson. The lumber thus purchased was used in the construction of the roof, the lumber being covered on the outside by roofing material placed thereon by a roofing company. It developed subsequently that the lumber used on the northern half of the roof was infested by an insect known as 'Arhopalus productus Le Conte' also known as a 'longhorned beetle.' It is characteristic of this insect to eat its way out of the wood to the surface leaving behind it a hole in the wood. In this case the insects not only emerged from the lumber itself but ate their way also through the protective covering of roofing material, creating numerous holes in the portion of the roof referred to so that in rainy weather the water entered these holes and, finding its way to the seams between the boards, leaked into the warehouse itself. It became necessary therefore to effect frequent repairs upon this portion of the roof and, in order to prevent future damage through further emergence of the beetles, to replace that portion of the roof by replacing some of the lumber and recovering the northern half of the roof first with sheet metal over which a new coating of roofing material had to be placed. As a result the plaintiff, Industrial Assets Co., brought its suit to recover its cost of these repairs.'

Judgment was rendered against Trinity in favor of Hubbard and Johnson upon the latter's cross-complaint.

The Issues

(1) Does the evidence support the finding that Trinity furnished the infested boards? (2) Did Trinity warrant the merchantability of the boards it furnished? (3) Did the court commit prejudicial errors in procedure during the course of the trial?

The Sufficiency of The Evidence

The defect was latent. Visual inspection does not disclose the presence of the larvae. Their entrance holes are too small for detection by the eye. They may remain in the wood for some time before boring their way out, making huch larger holes.

If Trinity had supplied all of the roof boards there would, of course, be no doubt that all of it came from its mill. However, Trinity supplied about two-thirds and another mill operator, Triangle Lumber Company, supplied about one- third of the boards used. This posed the issue of tracing the infested boards to their source.

Trinity's lumber was market near the end of each board: Its No. 1 grade, by the stamp of the West Coast Lumbermen's Association; its No. 2, by a blue crayon slash mark. A good many of these marks were removed in fabrication, by cutting the boards upwards of two feet from the end. The lumber supplied by Triangle was not marked.

There was evidence that infested boards and boards bearing the No. 1 stamp were in juxtaposition. Adjacent boards would have come from the same load of lumber. Each load was brought directly from the mill to the job and dumped in a single pile at the saw site. The ends of the boards in that pile would be tongue and grooved (the tongue and groove work at the mill stop a short distance from the end of each board) and taken on lumber carriers to the building, where it was put in place and nailed to the roof. There was no commingling of lumber received respectively from Trinity and from Triangle. There was also evidence that some of the boards in which holes had developed bore Trinity's No. 1 grade mark, and some bore Trinity's No. 2 blue slash marks.

Concerning this issue and his appraisal of the evidence, Judge Owens said: 'The burden on Hubbard and Johnson is to establish that the infested lumber was purchased from Trinity Lumber Co. This burden, of course, requires Hubbard and Johnson to establish the fact by 'a preponderance of the evidence.' We are concerned with 'logical probability.' Does the evidence indicate that it is more probable that the infested lumber was Trinity lumber than that it was not Trinity lumber? To establish this probability Hubbard and Johnson rely upon five criteria, (1) accessibility of beetles to the wood, (2) the actual grade stamp of Trinity upon some of the infested wood, (3) the blue slash marks upon some of the infested wood, (4) the pattern of boards as identified in the portion of the roof where the holes were located and the leakage occurred, (5) the proportionate amount of total lumber which was supplied by Trinity.

'With respect to the first criterion, the evidence establishes that the type of beetle here involved lays its eggs in 'dead' wood and that when the beetle emerges from the wood subsequently it flies away to renew the process in other 'dead' wood. It is capable of flying several miles. One of the more common causes of 'dead' wood is fire, that is a tree which, while still standing, has been attacked by fire. The evidence in this case shows that the lumber in question was taken from one side of the Trinity River while, on the other side of the river, the trees had been devastated by fire. The lumber in question was permitted to remain on the ground after the trees were cut long enough to render the timber 'dead' and thus a likely prey for beetles emerging from the fire-killed timber. Without analyzing in detail the evidence bearing upon the other four criteria, the Court is of the opinion that Hubbard and Johnson have met the burdedn of establishing, by a 'preponderance of the evidence' that the infested lumber was purchased by Hubbard and Johnson from the Trinity Lumber Co.' We concur in Judge Owens' analysis and conclusion on this phase of the inquiry.

Warranty of Merchantability

The evidence supports the findings that lumber infested as this lumber was in not merchantable and that Trinity impliedly warranted that this lumber was merchantable.

We concur in Judge Owens' exposition of the applicable principles of law: 'The second subdivision of C. C. 1735 provides for an implied warranty of merchantability in the case of a sale by description from a dealer who deals in such goods. (C. C. 1735 (2)) In such a sale the goods are warranted to be of merchantable quality. This warranty is applicable even if buyer and seller possess equal skill and judgment where the defect is a latent defect.

'In the instant case the goods were purchased by description, viz., 2X6 Douglas fir...