Abercrombie v. Union Portland Cement Co.

• Decision Date: 11 March 1922
• Citation: 35 Idaho 231,205 P. 1118
• Parties: Y. H. ABERCROMBIE, Appellant, v. UNION PORTLAND CEMENT COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

205 P. 1118

35 Idaho 231

Y. H. ABERCROMBIE, Appellant, v. UNION PORTLAND CEMENT COMPANY, a Corporation, Respondent

Supreme Court of Idaho

March 11, 1922

VENDOR OR MANUFACTURER-BREACH OF WARRANTY-CONTRACTUAL RELATION.

The general rule, to which there are certain well-established exceptions, is that a manufacturer or vendor of an article is not liable to any person other than the immediate purchaser of such article because of defect therein.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for damages. From judgment for defendant, plaintiff appeals. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

J. C Johnston, for Appellant.

A person or corporation manufacturing any article and placing it upon the market for sale to the public is liable for the defective quality of his or its goods, and if any damage arises from the defective quality of his or its goods, the company or person is liable in law for such damage. (29 Cyc 484-486, note (b); Bright v. Barnett Record Co., 88 Wis. 299, 60 N.W. 418, 26 L. R. A. 524; Hayes v Philadelphia etc. Coal & Iron Co., 150 Mass. 457, 23 N.E. 225; Wharton on Negligence, sec. 24; Quackenbush v. Ford Motor Co., 167 A.D. 433, 153 N.Y.S. 131.)

Where the manufacturer places his goods upon the market for a special purpose and represents the same to be the best upon the market and solicits and invites the public, the law makes the manufacturer liable on the ground that the goods or articles shall be reasonably fit for such purpose. (French v. Vining, 102 Mass. 135, 3 Am. Rep. 440; C. S., sec. 5687, subd. 1; Bishop on Noncontract Law, secs. 446, 1074; Talley v. Ayers, 3 Sneed (35 Tenn.), 677; Erie City Iron Works v. Barber & Co., 102 Pa. 156.)

Hays, Martin, Cameron & Hays, for Respondent.

"The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture or sale of such article." (2 Cooley, Torts, 3d ed., 1486; 29 Cyc. 478, 479; Field v. Empire Case Goods Co., 179 A.D. 253, 166 N.Y.S. 509.)

DUNN, J. Rice, C. J., and Budge and Lee, JJ., concur. McCarthy, J., took no part.

OPINION

DUNN, J.

Appellant brought this action against respondent to recover damages sustained by him by the use of certain cement manufactured by respondent and sold to appellant by one Charles D. Story. Appellant claims the right to recover from respondent because of his reliance upon certain representations made by respondent as to the excellent quality of the cement when properly mixed with other ingredients and used for the purpose for which cement is generally and commonly used and because of the failure of said cement to become hard, firm and compact, as respondent had represented in its advertisements. A general and special demurrer to this complaint was filed by respondent, which was overruled by the court, and thereupon trial was had before a jury, which returned a verdict against appellant. Judgment for costs was entered against appellant and he appealed.

Several errors are assigned by appellant which we think it will be unnecessary to examine, since respondent is pressing its demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action, and an examination of the complaint convinces us that the demurrer should be sustained.

Respondent contends that the complaint is fatally defective for the reason that it does not show a contractual relation between appellant and respondent.

The rule governing this class of cases, which we think is supported by the great weight of authority, is laid down in Cyc. as follows:

"The liability of a vendor or manufacturer for negligence, except as regulated by contract, must arise from breach of a duty which he owes to the public.

"Although it has been said that the duty which he owes to the public for breach of which one injured may recover, is limited to instruments and articles in their nature calculated to do injury, such as are essentially elements of danger, and to acts that are ordinarily dangerous to life and property; and that if the wrongful act be not imminently dangerous to life and property, the negligent vendor is liable only to the party with whom be contracted, it will appear on the contrary that the vendor or manufacturer may be held liable to persons with whom he has no contractual...