Buob v. Feenaughty Machinery Co.

• Decision Date: 10 June 1940
• Docket Number: 27841.
• Court: Washington Supreme Court
• Parties: BUOB v. FEENAUGHTY MACHINERY CO.

103 P.2d 325

4 Wn.2d 276

BUOB v. FEENAUGHTY MACHINERY CO.

No. 27841.

Supreme Court of Washington

June 10, 1940

Department 2.

Action by S. J. Buob against Feenaughty Machinery Company, to recover damages allegedly sustained as the result of misrepresentations and breach of warranty concerning a tractor. From an adverse judgment, defendant appeals.

Cause remanded with direction to modify judgment in accordance with opinion.

Where second judgment for buyer, suing for misrepresentation and breach of warranty regarding tractor, was reversed because of absence of findings of fact and conclusions of law, the amount of damages did not become liquidated until, upon findings and conclusions, the court entered its third judgment, and therefore interest was allowable, not from date of second judgment, but only from date of third judgment.

Appeal from Superior Court, Spokane County; R. M Webster, judge.

Tustin & Chandler, of Spokane, for appellant.

Graves kizer & Graves, of Spokane, for respondent.

STEINERT Justice.

This cause is Before us on appeal for the third time.

Plaintiff commenced the action on March 16, 1933, to recover damages alleged to have been sustained by him in the years 1930, 1931 and 1932, as the result of misrepresentations and breach of warranty by defendant concerning a tractor which plaintiff had purchased from defendant in July, 1930. The cause was tried to the court, sitting without a jury, and on November 30, 1936, the court entered judgment for plaintiff in the gross amount of $2,500, subject, however, to certain credits, or offsets, totalling $2,241.53, thus reducing the amount of the judgment to $258.47. In arriving at that result, the trial court held that a certain agreement entered into by the parties on March 5, 1932, constituted an accord and satisfaction, and that plaintiff was therefore not entitled to recover for any damages sustained by him prior to that date.

Plaintiff appealed from the adverse portion of the judgment, and, upon appeal, this court held that the trial court had erred in limiting plaintiff's damages to those which he had suffered subsequent to the agreement of March 5, 1932. The judgment was accordingly vacated, and the cause was remanded with instructions to the trial court to determine, from the evidence already taken and from such additional competent evidence as thereafter might be received, the amount of damages which plaintiff should recover for the entire period, beginning with the date when he first began to use the tractor in 1930. Buob v. Feenaughty Machinery Co., 191 Wash. 477, 71 P.2d 559.

Upon remand of the case to the superior court, additional testimony was taken, and, on April 16, 1938, judgment was entered, in plaintiff's favor, in the amount of $7,194.87. However, no findings of fact nor conclusions of law were made by the trial court, and upon appeal by defendant, the judgment was reversed and the cause was remanded 'with direction to the superior court to make findings of fact and conclusions of law.' Buob v. Feenaughty Machinery Co., 199 Wash. 256, 90 P.2d 1024, 1025.

Thereafter, on remand, the superior court made findings of fact and conclusions of law upon the evidence theretofore taken, and on October 6, 1939, entered judgment in favor of plaintiff in the corrected amount of $7,189.70. From that judgment, defendant now appeals.

The facts underlying the controversy are sufficiently set forth in the opinion rendered upon the first appeal (191 Wash. 477, 71 P.2d 559), and will not be repeated here. Upon the present appeal, appellant, in its original brief, advances twenty-one assignments of error, and, in a supplemental brief, alleges the existence of two 'accounting errors,' and also raises a question relative to the award of interest on the judgment.

Introductory to its argument upon the errors assigned, appellant makes the claim that the additional testimony taken subsequent to the first appeal dictates a result different from that reached by this court in its first opinion, and upon that ground appellant vigorously contends that we should now, upon the pending appeal, reconsider the case as a whole. Respondent takes a contrary view. The rules applicable to the situation presented by appellant's initial contention may be stated as follows:

Questions which have been determined on appeal, or which might have been determined, had they been presented, will not be considered by the appellate court upon a second appeal of the same action. Dennis v. Kass & Co., 13 Wash. 137, 42 P. 540; Smith v. Seattle, 20 Wash. 613, 56 P. 389; State v. Boyce, 25 Wash. 422, 65 P. 763; Wheeler v. Aberdeen, 47 Wash. 405, 92 P. 135; State ex rel. Nicomen Boom Co. v. North Shore Boom & Driv. Co., 62 Wash. 436, 113 P. 1104; Perrault v. Emporium Department Store Co., 83 Wash. 578, 145 P. 438; Toadvine v. Northwest Trust & State Bank, 128 Wash. 611, 224 P. 22; Buell v. Park Auto Trans. Co., 138 Wash. 678, 244 P. 992; Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482; Cannon v. Seattle Title Trust Co., 145 Wash. 691, 261 P. 642; Eyak River Packing Co. v. Parks, 148 Wash. 495, 269 P. 807; Fleming v. Buerkli, 164 Wash. 136, 1 P.2d 915; 1 A.L.R. 725.

Conversely, the judgment on a former appeal does not become the 'law of the case' as to such questions as were presented but were not decided and were not necessarily involved on that appeal.

An equally well settled rule is that where the weight and sufficiency of the evidence have been passed upon in a former appeal, and the evidence at a second trial is substantially the same, the decision on the former appeal is decisive in a second appeal. Olson v. Carlson, 83 Wash. 415, 145 P. 237, L.R.A.1915F, 13; Perrault v. Emporium Department Store Co., 83 Wash. 578, 145 P. 438; Fogarty v. Northern Pac. R. Co., 85 Wash. 90, 147 P. 652, L.R.A.1916C, 803; Mott Iron Works v. Metropolitan Bank, 90 Wash. 655, 156 P. 864; Ramat v. California Ins. Co., 104 Wash. 608, 177 P. 638; Foy v. Pacific P. & L. Co., 110 Wash. 248, 188 P. 514.

The necessary corollary to this latter rule is that when the evidence presented on the second appeal is materially different from that presented and passed upon in a former appeal, the decision in the prior appeal is not conclusive. 5 C.J.S., Appeal and Error, page 1293, § 1834; 3 Am.Jur. 553, § 1000.

In applying these rules to the situation now Before us, we must keep definitely in mind what was decided, and what was left open for decision, in the first appeal. Reference to the opinion on that appeal ( Buob v. Feenaughty, 191 Wash. 477, 71 P.2d 559), discloses that this court, in its decision, specifically found that the tractor purchased by respondent was defective; that respondent was justified in refusing to accept a second tractor which was sent, in June, 1932, in exchange for the first tractor; that appellant's agents grossly misrepresented both machines as to condition and previous use; and that the accord which the parties entered into by their agreement of March 5, 1932, never was executed, but remained executory. Basing its action upon those findings, this court vacated the judgment and remanded the cause for judicial determination of respondent's entire damages, also leaving open for further consideration by the trial court the effect of certain correspondence in which respondent had previously expressed satisfaction with the performance of the tractor. The evidence at the second trial, with reference to the specific points hereinabove stated, was substantially the same as that received in the first trial, and, hence, those matters may not be reviewed upon this appeal.

We now take up, in numerical order, appellant's twenty-one assignments of error.

Number 1. This assignment attacks the entire judgment, and is, as appellant concedes, a composite of the remaining assignments, which attack the judgment in its component parts. No separate discussion of this assignment of error is therefore necessary.

Number 2. Appellant assigns error on the part of the court in failing to find that respondent was bound by the conditions of the warranty under which the first tractor was sold by appellant. The contract of purchase provided that should the tractor fail to comply with the warranty included therein, 'written notice by registered letter shall be given to said Feenaughty Machinery Co.,' and that 'in no case shall the machinery be returned after five days.' Respondent did not comply with those requirements, and appellant now contends that respondent is therefore barred from recovery.

That question was presented to us on the first appeal, in the brief of appellant (respondent there), and, although the opinion made no specific mention of the matter, it was necessarily involved in the decision by this court, for if respondent was barred from recovery by virtue of his failure to comply with the conditions relative to the warranty agreed upon in the contract, then, manifestly, the case would not, and could not, have been remanded for a determination of respondent's damages. The writer of the present opinion is unable to state categorically the ground upon which this court refused to give binding effect to the conditions specified in the contract. It may have been that the court was of the view that appellant's subsequent agreement to supply a second tractor in exchange for the first one constituted a waiver of the conditions of the warranty. But whether or not that was the specific reason is immaterial. Nor is it material now whether that issue was correctly or incorrectly decided. The fact remains that the question was necessarily involved in the conclusion at which this court arrived on the first appeal, and hence cannot be considered now.

Number 3. Appellant next assigns as...