Hausken v. Hodson-Feenaughty Co.

• Decision Date: 27 January 1920
• Docket Number: 15462.
• Citation: 187 P. 319,109 Wash. 606
• Court: Washington Supreme Court
• Parties: HAUSKEN v. HODSON-FEENAUGHTY CO.

187 P. 319

109 Wash. 606

HAUSKEN v. HODSON-FEENAUGHTY CO.

No. 15462.

Supreme Court of Washington

January 27, 1920

Department 2.

Appeal from Superior Court, Spokane County; David W. Hurn, Judge.

Action by Peter Hausken against the Hodson-Feenaughty Company. Judgment for plaintiff, and both defendant and plaintiff appeal. Judgment affirmed on plaintiff's appeal, and modified on defendant's appeal.

Tustin & Chandler, of Spokane, for appellant.

Turner Nuzum & Nuzum, of Spokane, for respondent.

HOLCOMB C.J.

The court below found for the plaintiff on his cause of action and rendered judgment thereon awarding special damages in the sum of $225 and nominal damages in the sum of $1, from which judgment both parties have appealed.

Defendant which is the principal appellant, was a dealer in tractors in Oregon and Washington and not a manufacturer. Respondent is a farmer of Spokane county, Wash., and about 70 years of age. The tractor in question previous to its purchase by plaintiff had been looked at superficially by him. It had been examined by the president of the appellant, Mr. Feenaughty. Plaintiff claims defendant represented it as a new tractor. At the trial Feenaughty, who denied any affirmative representations as to the quality of the tractor to plaintiff, admitted that the tractor was, 'so far as he knew, a new machine' that it had been sent by his concern to an agent or dealer in Idaho and used for demonstration purposes and kept in a shed or barn so that it was not protected from the weather at the front end and the paint was off the front end, and there were two radiator pipes that had been damaged, and it looked in bad shape. It had then been sent to Spokane, and an attempt had been made to sell it to a Mr. Powell, who rejected it on account of its appearance and returned it to defendant. The sale to plaintiff, made shortly thereafter, was for cash then and there paid, and not by sample, or subject to inspection or test, and it was thus an 'executed' and not an 'executory' sale. Defendant claims that it was a secondhand machine as shown by the evidence, and therefore the probabilities are that no express warranties would have been or were made as to its condition, and that the rule is that no warranty can be implied. But it is evident that the machine was not considered as a secondhand machine by defendant and was not so represented to or received by plaintiff. Feenaughty testified that it was not mentioned as a secondhand machine; that he told plaintiff that it was a machine badly mussed up. On account of its appearance, it was sold to plaintiff at 15 per cent. from the list price.

Plaintiff claimed a recovery on warranties both express and implied as to the adaptability of the machine to do his work, its horse power, and general qualities arising from the information made to the seller of the exact amount of work it was desired to do and the reason why plaintiff desired a tractor on his farm, and that he had sold his horses and was not able to follow a plow and drive horses at his age, but that it was necessary to have a tractor. Besides asking for general damages in the sum of $800, plaintiff sought special damages, basing that right on the evidence that the use to which the tractor should be put was specifically explained to defendant, the necessity for its doing the work emphasized to and understood by defendant, and that the damages resulting to plaintiff as a consequence of its failure to do the work were within the contemplation of the parties and therefore recoverable.

The complaint alleges, and there is competent evidence to support the allegations, that defendant sold the tractor to plaintiff at Spokane for use on plaintiff's farm, which use was then and there disclosed to defendant, and necessary parts to be used in connection with the tractor for the sum of $800; that defendant then and there, and as part of the consideration for the purchase of the tractor by plaintiff, warranted that the tractor possessed eight horse power at the drawbar and 16 horse power at the belt, and that it would pull three mold board plows and three or four disc plows, and that it possessed the power and adaptability to do all work required in plowing, cultivating, and harvesting the crops on plaintiff's farm and possessed the power and ability to do all work; that the tractor did not possess eight horse power at the drawbar nor sixteen horse power at the belt; that it would not pull three mold board plows or three or four disc plows, and that it possessed neither the required power nor adaptability to do the work required in plowing, cultivating, and harvesting the crops on plaintiff's farm, and that it was so defective in design, build, and workmanship that it was deficient in power for plowing and harvesting; that it was unsafe to operate because of a defective brake system; that at times it would not start at all or run at all; that it could not be turned within a reasonable compass; and that, instead of having eight horse power at the drawbar, it would not do the work of two good horses, all of which made the tractor almost completely useless for farm work. It is then alleged that plaintiff suffered special damages in the sum of $800 during the years 1917 and 1918 by reason of having to hire men and teams to do the work that the tractor would not do and by reason of injury to his crops in each of those years because of necessary and unavoidable delay in procuring men and teams to do his farm work, for which damages were demanded in the total sum of $1,600.

All the allegations of the complaint were put in issue except the sale of the tractor to plaintiff, which was alleged to be for the sum of $742.

Plaintiff first moves to strike the abstract of defendant and dismiss its appeal. We do not think this motion is well taken, and it is therefore denied. Wishkah Boom Co. v. Greenwood Timber Co., 100 Wash. 472, 476, 171 P. 234.

Appellant demands reversal of the judgment upon three grounds: (1) The testimony preponderated in favor of the defendant; (2) that, even if there had been implied warranty in the sale of the tractor, the special damages allowed were not proper; (3) that there was no implied warranty in the sale of the machine under the circumstances of this case.

As to the first contention, the positive evidence of plaintiff with some corroboration as to the condition and performance of the machine and the reasonable probabilities surrounding the transaction, was contradicted in chief by the positive evidence of Feenaughty as to most of the facts, and the probabilities are nowhere stronger in favor of defendant than in favor of plaintiff. The court having seen and heard the witnesses and found in favor of plaintiff in the main, we cannot say now that the testimony preponderates in favor of defendant. The court found, among other things, that no special warranties were made by defendant to plaintiff concerning its tractor previous to the time plaintiff purchased the tractor, and that there was an implied warranty accompanying the tractor that it was possessed of sufficient power and adaptability to do the work on plaintiff's farm, and that it would pull three mold board plows or four disc plows, and that it possessed power and ability to do all work required in properly plowing, cultivating, and harvesting the crop on plaintiff's farm, and that it would run and possessed the power and ability to do his work; that the tractor did not possess sufficient power to pull three mold board plows or three or four disc plows or any more than one mold board...