Hurley-Mason Co. v. Stebbins, Walker & Spinning

• Decision Date: 29 April 1914
• Docket Number: 11,311.
• Citation: 79 Wash. 366,140 P. 381
• Court: Washington Supreme Court
• Parties: HURLEY-MASON CO. v. STEBBINS, WALKER & SPINNING.

140 P. 381

79 Wash. 366

HURLEY-MASON CO. v. STEBBINS, WALKER & SPINNING.

No. 11,311.

Supreme Court of Washington

April 29, 1914

Department 1. Appeal from Superior Court, Pierce County; E. M. Card Judge.

Action by the Hurley-Mason Company against Stebbins, Walker &amp Spinning. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

B. S Grosscup and W. C. Morrow, both of Tacoma, for appellant.

T. L. Stiles, of Tacoma, for respondent.

ELLIS J.

Action to recover damages for an alleged breach of an executory contract for the sale of cement. The plaintiff had a contract with the Northern Pacific Railway Company to construct a passenger station in the city of Tacoma, in accordance with certain plans and specifications. Much of the work consisted of reinforced concrete walls, which the plaintiff's contract with the railway company required should be built of Portland cement of a quality specified in the contract as follows: 'Cement, when not otherwise specified, shall be Portland of the Vulcanite, Atlas, Lehigh, Alpha, Saylor or other brands, from approved manufacturers, that will fulfill the standard tests of the architects. It shall be inspected by a firm approved by the architects, either at the mill or at the site, and five (5) cents per barrel shall be allowed by the contractor for this inspection.' Then follow tests substantially the same as those hereinafter set out in the plaintiff's order for the cement from the defendant. The contract for the purchase of the necessary cement is evidenced by the following written order, counter offer, and acceptance:

'Aug. 20, 1909.

'Messrs. Stebbins, Walker & Spinning, Tacoma, Wash.--Gentlemen: We herewith confirm our order for fifteen thousand barrels or more of Atlas cement to be delivered to us in the care of the Northern Pacific Railroad at St. Paul, for $1.40 per barrel less 30¢ per barrel for empty sacks. This cement is purchased subject to the following tests as specified by the architects for the Tacoma depot:

'(b) Tests:

'(1) Fineness: On #100 sieve of 10,000 meshes per square inch (Stubbs wire gauge) 92% must pass through.

'(2) Initial Set: Initial set as determined by time required for cake of plastic neat cement to bear wire 1/2 inch diameter loaded to weight four ounces without appreciable imprint, shall not be less than 45 minutes from time of adding water.

'(3) Final Set: Final set as determined by the time required for cake of plastic neat cement to bear 1/24 inch diameter loaded to weigh one pound without appreciable imprint, shall not be more than five hours from time of adding water.

'(4) Soundness: Cold water test. Pats of plastic paste about three inches in diameter by 1/2 inch thick at center with thin edges, kept in moist air until final set and for the balance of 28 days in water of temperature approximately 65 degrees Fahr. shall not crack, warp nor soften.

'(5) Neat Tensile Test: Briquets of cement paste, mixed five minutes with minimum amount of water necessary to make mortar thoroughly soft and plastic at the end of 24 hours, break at not less than 125 lbs. per square inch and at the end of 7 days, break at not less than 400 lbs. per square inch.

'Please wire immediately and have the company ship 1,000 barrels at once.

'Yours truly,

'Hurley-Mason Company,

'By Chas. B. Hurley.'

'Tacoma, Sept. 21, 1909.

'Hurley-Mason Co., City--Gentlemen: As per verbal agreement between your Mr. Hurley and the writer, we propose to deliver to you Atlas Portland cement under the following conditions:

'The Hurley-Mason Co. shall be known as the purchaser and Stebbins, Walker & Spinning shall be known as the seller in the following paragraphs:

'First. The seller agrees to furnish the purchaser and said purchaser agrees to accept from the seller the Atlas Portland cement herein specified in the quantity of fifteen thousand (15,000) barrels to be delivered as hereinafter set forth. It being understood and agreed between the parties herein that the seller is to be under no obligation to make shipment in excess of five thousand (5,000) barrels in any one month. Shipment of cement herein specified to be made in car load lots. Entire quantity required to be ordered forward in time for shipment prior to April 1st, 1910. * * *

'Second. That the seller will furnish under this contract Atlas Portland cement that will conform to the requirements of the specifications covered by your letter of August 20th, 1909, to the seller which becomes a part of this contract. All claims of the purchaser upon the seller must be made in writing, and filed with the seller within five (5) days after the cement is received; failure to file a claim within the time allowed will be acknowledgment by the purchaser of the receipt of the cement in good condition and in the quantity specified in the bill of lading and invoice.

'Third. That the seller will furnish Atlas Portland cement required under this agreement at the following price, to wit: f. o. b. cars, St. Paul, Minn., one dollar forty-five cents ($1.45) per barrel in cloth bags.

'Fourth. That the seller will purchase Atlas cloth bags at seven and one-half cents each, subject to the following conditions: [No question arises from the conditions which follow. We omit them.]

'Yours very truly,

'Stebbins, Walker & Spinning,

'Per L. R. Walker.

'The purchaser agrees to accept from the seller Atlas Portland cement subject to the conditions set forth above.

'Hurley Mason Co.,

'By Chas. B. Hurley, Prest.'

The defendant began delivering the cement about the middle of September; the same being tested at the mill of the Atlas Cement Company, the manufacturer, at Hannibal, Mo., by Hunt & Co., the testers approved by the architects of the railroad company under the plaintiff's contract with the railroad company. It appears that the plaintiff made no tests at all, but relied upon the tests made by Hunt & Co., at the mill. By the latter part of November, about 2,500 barrels of cement had been accepted and used on the work with satisfactory results. About November 20th the plaintiff claims that it used about 444 barrels of the cement then arriving in Tacoma which, upon pouring the concrete into the forms, would not set soon enough, and, though allowed to remain until December 7th, never solidified. On the latter date, by order of the inspector for the railway company on the work, this concrete was taken out. At about the time that this cement was being used, the plaintiff received a telegram from the engineer for the railway company, stating that three car loads of cement had been shipped without testing. The remainder of the cement then on hand being under suspicion, which, it seems, was about 600 barrels, was loaded onto cars, sent to the Commercial dock in Tacoma, where subsequently samples were taken from it for the purpose of making tests on behalf of the various persons interested, namely, the railway company, the plaintiff, the defendant, and the Atlas Cement Company, the manufacturer. The evidence details the manner in which these samples were taken and the results of the tests made by different experts for the various interests represented in the transaction. These tests did not agree. The plaintiff claims that this evidence showed that the cement in question did not meet the tests prescribed in the contract, while the defendant claims exactly the contrary.

The plaintiff claimed damages in the sum of $4,114.66, including the cost of new cement, sand, and gravel used in replacing the concrete taken out, the labor of tearing it out, the expense of building new forms, charges for superintendence, use of plant, insurance, wages of watchman and timekeeper, and freight paid upon the cement used in the concrete taken out, and also on the cement ordered off the work, and the cost of testing. The plaintiff also claimed $2,339.62 for sacks returned to the defendant not paid for. Against this the plaintiff admitted that the defendant has a valid offset of $2,900 for 2,000 barrels of cement furnished. The court made findings in favor of the plaintiff and entered judgment against the defendant in the sum of $3,520.91, with costs. The defendant appeals.

In our discussion we shall proceed upon the assumption that the cement, for the damages occasioned by the use of which the respondent sued, would not have met the tests prescribed in the contract at the time it was delivered to the respondent at Tacoma. We shall assume that this was sufficiently shown by the tests of the remainder of the cement made after the rejection of the work by the railroad company's architect. Such was the effect of the court's finding. The view which we take of the law of the case makes it unnecessary to review the evidence upon which this finding was based.

On the law of the case, appellant contends that the facts do not establish a warranty, but merely a sale of cement to be accepted upon a test by the purchaser. The respondent contends that the judgment should be sustained upon two elements of warranty: An express warranty that the cement would comply with the five tests specified in the contract, and an implied warranty that the cement would be reasonably fit for the known purpose for which it was purchased. These contentions present three questions, the solution of which must be determinative of this case. They are these: (1) Upon whom, as between appellant and respondent, was the duty of making the tests, and when and where? (2) Was the provision that the sale was subject to the given tests a warranty collateral to the contract, surviving acceptance of the cement, or was it a condition of the contract, satisfied by acceptance? (3) Was there any implied warranty that the material would be fit for the purpose for which it was purchased?

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