Lenz v. Blake-McFall Co.

Decision Date18 April 1904
Citation76 P. 356,44 Or. 569
PartiesLENZ et al. v. BLAKE-McFALL CO.
CourtOregon Supreme Court

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Action by Harry Lenz and others against the Blake-McFall Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

This is an action to recover a balance alleged to be due on account of the sale of paper boxes. The complaint avers that on June 3, 1901, plaintiffs, as partners, sold and delivered to defendant, a corporation, certain goods, wares, and merchandise, for the agreed price of $608.48, no part of which had been paid, except $190.18, leaving due $418.30, for which judgment was demanded. The answer denied the material allegations of the complaint, and averred that defendant entered into a contract with plaintiffs whereby they were to sell and deliver to it paper butter-boxes, stating that they were grease-proof and fit for the butcher trade, for which purpose plaintiffs knew they were desired by defendant, which relied on such representations; that the boxes were not grease-proof; that defendant had no opportunity to ascertain that they were not as represented until after they were delivered, and a part of them had been placed on the market but, as soon as it discovered that they were not grease-proof, it notified plaintiffs thereof, paid for the boxes sold, and tendered to them the remainder, which are of no value; and that, in consequence of a breach of the warranty, defendant has sustained damage in the sum of $418.30. The reply denied the allegations of new matter in the answer, and a trial, being had, resulted in a judgment for the defendant, and plaintiffs appeal.

Arthur C. Emmons, for appellants.

A. King Wilson, for respondent.

MOORE C.J. (after stating the facts).

The bill of exceptions discloses that at the trial plaintiffs introduced testimony tending to show a sale and delivery of the goods without any representations as to their quality. The defendant's evidence, however, tended to prove that the boxes were sold with a warranty, upon which it relied; that the goods were delivered in June, 1901, and it was not discovered until about two months thereafter that the boxes were not suitable for the purpose for which they were ordered; and that there was a substantial difference in quality and value between the boxes ordered and those delivered. No evidence was offered, however, tending to show the difference in value, or how much defendant was damaged by the breach of the warranty. Based upon such want of proof plaintiffs' counsel requested the court to give the following instruction: "The defendant having failed to show how much, if anything, it had been damaged on account of the noncompliance of the goods delivered with the warranty alleged in the answer, the plaintiffs are entitled to recover the full amount remaining unpaid on the agreed contract price of the goods sold and delivered to defendant." This was refused, and the jury were charged, in effect, that if there was a warranty that the boxes sold should be grease-proof, and the defendant relied thereon in purchasing them, and they were not as represented, plaintiffs could not recover. Exceptions having been taken to the instructions given and refused, it is contended by plaintiffs' counsel that errors were thereby committed.

The answer having stated that the boxes were intended for a particular purpose, known to the plaintiffs, and sold by them by description, an implied warranty was thus alleged, that the goods should be as represented, and reasonably fit for that purpose. Morse v. Union Stockyards Co., 21 Or. 289, 28 P. 2, 14 L.R.A. 157; Abilene Nat. Bank v. Nodine, 26 Or. 53, 37 P. 47; Gold Ridge Mining Co. v. Tallmadge (Or.) 74 P. 325. The defendant had a reasonable time to inspect the goods after their receipt, and, if they did not correspond with those ordered, the warranty in respect thereto might have rendered that part of the contract tantamount to a condition precedent, thereby authorizing the defendant to repudiate its agreement. Tiedeman, Sales, § 180; Sun Pub. Co. v. Minn. Type Foundry Co., 22 Or. 49, 29 P. 6; Brigham v. Hibbard, 28 Or. 386, 43 P. 383; Steiger v. Fronhofer (Or.) 72 P. 693. The defendant, having sold a part of the boxes before discovering they were not suitable for the purpose for which they were intended, thereby accepted them, and was entitled only to a counterclaim for such damages as naturally resulted from a breach of the alleged warranty. Tiedeman, Sales, § 197; Drake v. Sears, 8 Or. 209; Schumann v. Wager, 36 Or. 65, 58 P. 770; Dean Pumpworks v. Astoria Ironworks, 40 Or. 83, 66 P. 605. e v. Island City Mercantile & Milling Co.,

16 Or. 93, 17 P. 740, a contractor having agreed to alter a mill by putting in improved machinery, so that when completed it would have a capacity to make a given quantity of flour per day, of a specified quality, but failing to comply therewith it was held that the owner, by using the mill after the change, did not thereby accept the work, or waive a performance of the conditions upon which the right to the final payment depended. Mr. Justice Thayer, referring to the parties, in deciding the case, says: "The respondents proposed to substitute for the process the appellants were using in their mill to manufacture flour a new and improved process, the efficiency of which they especially guarantied. The mill was to be under their control, when constructed, until accepted by the appellants. The latter were to furnish wheat, bear the expense of operating the mill from the time of starting it, and when the guaranty was fulfilled, were immediately to accept it, and were then to make said last payment. The respondents were to demonstrate by a practical test that they had fulfilled their guaranty. The said payment did not mature until that was done. It was a condition precedent to the making of the...

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10 cases
  • F. C. Austin Co., Inc. v. J. H. Tillman Co.
    • United States
    • Oregon Supreme Court
    • July 25, 1922
    ...for a machine which was not yet in existence when they made the agreement: Steiger v. Fronhofer, 43 Or. 178, 183 (72 P. 693); Lenz v. Blake, 44 Or. 569 (76 P. 356). If, on other hand, the parties intended to agree that the defendant could keep the hoist without paying for it if it did not w......
  • Schaffner v. Nat'l Supply Co
    • United States
    • West Virginia Supreme Court
    • April 3, 1917
    ...362, 13 L. R. A. 224, 23 Am. St. Rep. 783; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St Rep. 753; Lenz v. Blake, 44 Or. 569, 76 Pac. 356; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 Am. St. Rep. 563; Wisconsin Red Pressed-Brick Co. v. Hood, 60 ......
  • Feeney & Bremer Co. v. Stone
    • United States
    • Oregon Supreme Court
    • March 19, 1918
    ...for a machine which was not yet in existence when they made the agreement. Steiger v. Fronhofer, 43 Or. 178, 183, 72 P. 693; Lenz v. Blake, 44 Or. 569, 76 P. 356. If, the other hand, the parties intended to agree that the defendant could keep the hoist without paying for it if it did not wo......
  • Schaffner v. Nat'l Supply Co.
    • United States
    • West Virginia Supreme Court
    • April 3, 1917
    ...St. Rep. 783, 22 At. 362, 13 L. R. A. 324; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 16 Am. St. Rep. 753, 23 N. E. 372; Lenz v. Blake, 44 Or. 569, 76 P. 356; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 57 Am. St, Rep. 563, 67 N. W. 298; Wisconsin Red Pressed-Brick Co. v. Hood, 60 M......
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