A. H. Andrews & Son v. Harper
| Decision Date | 13 January 1926 |
| Docket Number | 19384. |
| Citation | 242 P. 27,137 Wash. 353 |
| Court | Washington Supreme Court |
| Parties | A. H. ANDREWS & SON v. HARPER et ux. |
Department 2.
Appeal from Superior Court, Clarke County; Smith, Judge.
Action by A. H. Andrews and Son, copartners, against Amos Harper and wife, in which defendants cross-complained. Judgment for defendants on cross-complaint, and plaintiffs appeal. Reversed and remanded, with directions.
Miller Wilkinson & Miller, of Vancouver, for appellants.
W. F Magill, of Portland, Or., for respondents.
The plaintiffs, Andrews & Son, commenced this action in the superior court for Clarke county seeking recovery of an alleged balance due them from the defendants Harper and wife upon the purchase price of dairy stock feed. The defendants answered and cross-complained, setting up a claim of damages alleged to have resulted to their cows from the use of one small lot of the feed, exceeding the balance due upon the purchase price of the whole thereof. A trial before the court sitting without a jury resulted in findings and judgment awarding to Harper and wife recovery of damages for $395.51 in excess of the balance due upon the whole of the purchase price. From this disposition of the case Andrews & Son have appealed to this court.
Andrews & Son have been retail dealers in dairy and other live stock feed since prior to January, 1923, during which period they have been selling to dairymen in the neighborhood of the small town where they maintain their business a feed known and branded as 'Lilly's Golden Dairy Feed,' a generally well-known feed compounded and sold at wholesale to retail dealers by the well-known wholesale concern of Lilly & Co. of Seattle. This feed, after being compounded, is put up in bags by Lilly & Co., securely sewed, with a view of the retail dealers selling it to dairymen without opening the sacks; that is, with a view of the feed being sold at retail to the consumer in the original packages. Each of the bags is plainly branded with the name of Lilly & Co. as the maker or compounder, the name of the feed, and a statement of the ingredients from which the contents are compounded--this manifestly, to comply with the requirements of section 7018, Rem. Comp. Stat., relating to 'Concentrated commercial feeding stuffs.' Between January 19, 1923, and January 5, 1924, from time to time, Andrews & Son sold to Harper and wife dairy feed, assuming it all to be of good quality, of the value of $1,230.93. There were paid upon these sales from time to time sums aggregating $585.44, leaving an unpaid balance of $645.49. These sales apparently were made for the most part of Lilly's Golden Dairy Feed. On September 23, 1923, one of these sales was made of that feed from Andrews & Son to Harper and wife. This is the only lot complained of as containing any foreign deleterious or poisonous substance. We shall assume as we proceed that that lot did contain some foreign deleterious or poisonous substance, and, upon being fed to the cows of Harper and wife, caused damage to them to the extent found by the trial court.
Since Harper and wife rest their right to recover damages upon a warranty made by Andrews & Son as to the quality of the particular lot of Lilly's Golden Dairy Feed sold and delivered on September 23, 1923, it seems necessary that we take pains to ascertain just what was said, and, when it was said, pertaining to any such possible warranty. There is no writing evidencing any warranty by Andrews & Son. All that was orally said, and when it was said, having any possible bearing upon the question of warranty, is evidenced only by the testimony of Harper and his wife. Mr. Harper testified as follows:
Mrs. Harper testified as follows:
The record contains no other evidence of any words of warranty passing between the parties.
Was there any express warranty as insisted upon by counsel for Harper and wife? It is apparent that whatever was said by Andrews or his son about the quality of Lilly's Golden Dairy Feed was all said at the time of the first purchase of that kind of feed by Harper and wife, which plainly was a long time, approximately a year, prior to the sale and delivery to them of the particular feed purchased on September 23, 1923, which is claimed to have caused the damage for which recovery is here sought. The substance of the recommendation or praise of the feed by Andrews & Son, as testified to by Mr. Harper, is that they 'said it was a great milk maker,' 'it was fine feed,' 'it was good feed,' and that 'he would recommend it for a milk maker,' and, as testified to by Mrs. Harper, they 'started feeding it at Mr. Andrews' recommendation.' This, we think, was only a general recommendation of...
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Larson v. Farmers' Warehouse Co., 22674.
... ... of the seller that such packages do not contain any foreign, ... deleterious, or poisonous substances. Andrews & Son v ... Harper, 137 Wash. 353, 242 P. 27 ... Appellant ... admits that under the contract between the parties it ... ...
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Bradford v. Moore Bros. Feed and Grocery
...animals. It would seem that this should be so a fortiori. At least it has been so applied in other jurisdictions. A. H. Andrews & Son v. Harper, 137 Wash. 353, 242 P. 27; Walden v. Wheeler, 153 Ky. 181, 154 S.W. 1088, 44 L.R.A.,N.S., 597; 1 Williston on Sales (Revised Edition, 1948), § 242,......
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