Croton Chemical Corp. v. Birkenwald, Inc.
| Decision Date | 15 August 1957 |
| Docket Number | No. 33654,33654 |
| Citation | 314 P.2d 622,50 Wn.2d 684 |
| Court | Washington Supreme Court |
| Parties | CROTON CHEMICAL CORPORATION, a corporation, Appellant, v. BIRKENWALD, Inc., a corporation, Respondent. |
Alexander Wiley, Seattle, for appellant.
Moriarty, Olson & Campbell, Seattle, for respondent.
In 1951, the defendant ordered seventy-five barrels of curing salt for resale by it to meat packers. It specified that the salt should be manufactured for it by the plaintiff and contain eighty-five per cent sodium chloride, twelve per cent sodium nitrate, and three per cent sodium nitrite. The plaintiff filled the order, packed it in fiber drums, and delivered it f. a. s. (free alongside ship) in New York. It was shipped to Seattle via the Panama Canal and arrived in Seattle in December, 1951.
The defendant's customers began returning orders filled by it because the salt was caked 'like cement.' The meat packers need a 'free flowing' salt.
Negotiations between the parties to settle the matter came to nothing. Plaintiff then sought a judgment for the purchase price in the amount of $1,518.75. The defendant relies on a breach of implied warranty.
When goods are shipped f. a. s., the consignor is relieved of liability from causes of damage arising after delivery of the goods to the ship dock. Lord v. Edwards, 148 Mass. 476, 20 N.E. 161, 2 L.R.A. 519, Tex-O-Kan Flour Mills Co. v. Nord, La.App., 18 So.2d 50.
This case presents only this question of fact: What caused the salt to become hard and unusable?
The plaintiff seller produced competent evidence to prove that the moisture, which caused the hygroscopic chemicals to harden, was drawn from the moist tropical air encountered in the Panama route of shipment.
The defendant, on the other hand, produced competent testimony to prove that the moisture content of the materials at the time of manufacture caused the salt to harden and breached the implied warranty of fitness for meat curing.
The court had the right to believe either theory, since both are adequately supported by competent evidence. The court chose to believe the defendant's theory and entered judgment accordingly. The plaintiff appeals.
RCW 4.44.060, Rem.Rev.Stat., § 368, provides, inter alia:
'* * * The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, * * *.'
Since the court's findings and judgment are supported by the record, we will not overturn them.
The judgment is affirmed.
Article IV, section 4, of the state constitution provides: 'The supreme court shall have * * * appellate jurisdiction in all actions and proceedings, * * *.' It is our duty to review the claimed errors of the trial court, whether of law or of fact. We have no right to abdicate that responsibility and make the trial judge supreme- § to questions of fact. To do so would not be fair to litigants. It would not be in accord with the purpose of appellate review. Of course, we should not place ourselves on the trial bench. We should not substitute our judgment for that of the trial judge. However, if the record clearly preponderates against the findings of the trial judge, it is our duty, as an appellate court, to reverse. I believe that this is the situation here.
Now what are the facts. We have this situation: Curing salt was ordered according to certain specifications. It was manufactured and ground according to those specifications. It was shipped via the Panama Canal. When it arrived in Seattle it was solidly caked. If it became caked during and as a result of the trip, the seller would not be liable. If it became caked as a result of faulty manufacture, the seller would be liable.
The court entered Finding of Fact No. VI:
'That this caking was due entirely to the presence of excessive moisture in the meat-curing salt, that this excessive moisture was in the salt when it was packaged by plaintiff, that no hazard of the sea while the salt was in transit caused this caking, and that the salt became caked and hardened as a result of the plaintiff improperly putting the damp salt in the...
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...its judgment for that of the trial court even though it might have resolved a factual dispute differently. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wash.2d 684, 314 P.2d 622 (1957).Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 879–80, 73 P.3d 369 (2003). We will “ ‘not sub......
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...judgment for that of the trial court even though it may have resolved a factual dispute differently. See Croton Chem. Corp. v. Birkenwald, Inc., 50 Wash.2d 684, 686, 314 P.2d 622 (1957). We review questions of law and conclusions of law de novo. See Veach, 92 Wash.2d at 573, 599 P.2d 526. W......
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