Larson v. Farmers' Warehouse Co., 22674.

• Decision Date: 02 April 1931
• Docket Number: 22674.
• Citation: 161 Wash. 640,297 P. 753
• Court: Washington Supreme Court
• Parties: LARSON v. FARMERS' WAREHOUSE CO.

297 P. 753

161 Wash. 640

LARSON v. FARMERS' WAREHOUSE CO.

No. 22674.

Supreme Court of Washington

April 2, 1931

Department 2.

Appeal from Superior Court, King County; H. G. Sutton, Judge.

Action by Olaf Larson against the Farmers' Warehouse Company, in which defendant filed a cross-complaint. Judgment for plaintiff, and defendant appeals.

Affirmed.

Tom Alderson, of Seattle, for appellant.

James G. Mulroy, of Seattle, and Charles A. Cave, of Auburn, for respondent.

BEALS J.

Plaintiff resided near the town of Auburn upon a twenty-acre stump ranch, upon which he raised a little produce, and where he kept four cows and a few chickens. In addition to the income derived from his ranch, plaintiff worked as a carpenter. Defendant is engaged in business as a dealer in hay, grain, and feed, and, during the month of March, 1929 plaintiff purchased from defendant thirty-one bales (two tons) of hay which he intended to feed to his stock. Plaintiff had made prior purchases of feed from defendant who knew the purpose for which plaintiff purchased the hay. The particular order in question was given by plaintiff's wife to a salesman in the employ of defendant, and called for 'No. 1 first cutting alfalfa.' Defendant filled the order, and the thirty-one bales of hay were piled in plaintiff's barn to be used as needed. The hay was apparently of excellent quality, neither too dry nor too damp, and was much relished by plaintiff's stock. In June, 1929, plaintiff sued defendant, alleging that the hay had contained lead arsenate and had poisoned his cows, and that as a result of eating the hay three of the cows had died, to plaintiff's damage in the sum of $430, for which amount, together with $50 expenses, plaintiff prayed for judgment. Defendant answered denying the material allegations of plaintiff's complaint, and cross-complaining against plaintiff for $112, an alleged balance due for goods sold. Plaintiff admitted the purchase of the goods referred to in defendant's cross-complaint, and complained of none thereof, save the hay. The action was tried to the court sitting without a jury, and resulted in a judgment in favor of the plaintiff for $382.33, from which judgment defendant appeals.

Respondent testified that he did not feed the hay to his stock for a week or two after he received the same, and that, seven or eight days after he commenced to feed this hay to his cattle two of his cows became sick, whereupon he called a neighboring veterinary to treat them. The veterinary diagnosed the cows' ailment as lead poisoning and gave them medicine, notwithstanding which the two cows died. The first visit of the veterinary occurred March 25th, the cows dying a few days thereafter. A few weeks later a third cow, which had been eating the hay, sickened and died. Respondent relies upon section 15 of the Uniform Sales Act, Rem. 1927 Supp., section 5836-15, the pertinent portions of which read as follows:

'Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. * * *'

Appellant contends that under the facts of this case appellant is not liable in law under any implied warranty, available to respondent under the facts here shown, as to the whole-someness of the hay, and that, as the hay was not sold under an express warranty, respondant cannot recover. In 35 Cyc. page 365, it is stated: 'A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, although collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. * * * A warranty is implied when the law derives it by implication or inference from the nature of the transaction, or the relative situation or circumstances of the parties.'

The general principles underlying warranties are stated in 24 R. C. L. § 425, as follows: 'A warranty is an express or implied statement of something which a party undertakes shall be a part of the contract, and, though part of the contract, collateral to the express object of it; and while it is a concomitant, it is also a collateral, self-existent contract, and no more a part of the sale than a covenant of warranty in a deed is part of the conveyance. * * * All contracts of sale with warranty must contain two independent stipulations: (1) an agreement for the transfer of title and possession from the seller to the buyer; (2) a further agreement that the subject of the sale has certain qualities and conditions.'

It is true, as contended by appellant, that implied warranties are exceptions to the old common-law maxim, 'caveat emptor,' which maxim was, however, formerly of more general application than now. It is also true that under the Uniform Sales Act the common-law liability of the seller has been, at least in many of the states, somewhat enlarged. Williston on Sales (2d Ed.) vol. 1 § 248.

The most general application of the doctrine of implied warrantly has been in cases of sales of foodstuffs intended for immediate human consumption, in which cases it has been very generally held that a warranty of soundness or wholesomeness will be implied. Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N.W. 812, 21 L. R. A. 139, and notes; see, also, 24 R. C. L., § 467. As above stated, the application of this doctrine has of recent years been quite generally enlarged. Williston on Sales, vol. 1, § 242A. As to whether or not this doctrine extends to the sale of provender for animal consumption, the cases are not in harmony. Williston on Sales, vol. 1, § 242. Courts have generally held that, when one asks for by name and buys from a retail merchant a patented, copyrighted, or trademarked product, manufactured by another, sold in marked, original, unbroken packages, there is no implied warranty on the part 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 would be liable to respondent under an implied warranty if the hay which it sold was unfit as feed for respondent's stock by reason of the fact that it was not first cutting hay, or was not No. one quality, or was not alfalfa, or if, in the growing, producing, storing, or distributing thereof, any of its intrinsic value or natural characteristics which made it desirable for stock feed had been lessened or lost, and that by reason thereof respondent had suffered damage. Appellant contends, however, that, even though it appears that there was in the hay some latent defect or foreign, deleterious, poisonous substance, the presence of which was not caused by the usual method of production, storage, or distribution, the presence of which was as apparent to the buyer as to the seller, no implied warranty exists, and the doctrine of caveat emptor applies. This case, on the facts, unquestionably comes within the latter classification.

In support of this argument, appellant cites many authorities. In the case of Hoe v. Sanborn (1860) 21 N.Y. 552, 78 Am. Dec. 163, it was held that there was no implied warranty in case of a sale of circular saws by the manufacturer thereof, the saws on use proving to be too soft, due to a latent defect in the material purchased by the manufacturer, the court finding that the defect was not due to any error in manufacturing, but was caused by poor material furnished the sawmaker.

In the case of Ketchum v. Stetson & Post Mill Co., 33 Wash. 92, 73 P. 1127, this court held that the vendor of a boom of sawlogs was not liable for damage suffered by his vendee because of a piece of iron embedded in one of the logs, which, when the log was sawed, damaged the vendee's machinery. It appeared that the vendor had no knowledge of the presence of the piece of iron in the log, and that the vendee inspected the logs before starting them through the mill. See, also, Walden v. Wheeler, 153 Ky. 181, 154 S.W. 1088, 44 L. R. A. (N. S.) 597, and notes; and Wade v. Batesville Hog Co., 139 Miss. 434, 104 So. 145.

In this connection appellant relies upon the case of Andrews & Son v. Harper, 137 Wash. 353, 242 P. 27, referred to above, in which it was sought to hold the retailer upon a warranty as to the quality of a branded 'dairy feed.' It was held that no express warranty was proven, and that no warranty was implied in law, as the feed sold was contained in the original containers, data concerning which was plainly stamped upon each package.

The case last cited is not controlling here, but falls within that class of cases which concern themselves with the rights of one who asks for by its name and buys from a retailer a patented or proprietary product in the original package in which the same was put up by the manufacturer or wholesaler. The rule governing such cases is not applicable to such a case as this, in which it appears that respondent ordered...