Letres v. Washington Co-op. Chick Ass'n

• Decision Date: 17 March 1941
• Docket Number: 28128.
• Citation: 111 P.2d 594,8 Wn.2d 64
• Court: Washington Supreme Court
• Parties: LETRES v. WASHINGTON CO-OPERATIVE CHICK ASS'N.

111 P.2d 594

8 Wn.2d 64

LETRES v. WASHINGTON CO-OPERATIVE CHICK ASS'N.

No. 28128.

Supreme Court of Washington

March 17, 1941

Department 1.

Action by John Letres against the Washington Co-Operative Chick Association to recover back purchase price of chicks which were diseased as well as other damages allegedly sustained by plaintiff. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Appeal from Superior Court, Whatcom County; Ralph O. Olson, judge.

Frank M. Allyn, of Bellingham, for appellant.

Sather & Livesey and Burton A. Kingsbury, all of Bellingham, for respondent.

MAIN Justice.

This action was brought to recover a money judgment. To the complaint a demurrer was interposed, and also a motion to strike. The demurrer was overruled, and the motion was, in part, granted. An amended complaint was filed, to which there was no demurrer. The answer denied liability, and pleaded two affirmative defenses. The trial was to the court and a jury and resulted in a verdict in favor of the plaintiff in the sum of $850.23. The defendant moved for judgment notwithstanding the verdict, and also for a new trial, both of which motions were overruled. Judgment was entered upon the verdict, from which the defendant appealed.

The appellant, the Washington Co-operative Chick Association, a corporation, was engaged in the business of hatching and producing chicks and poultry stock. The respondent was engaged in the business of raising poultry for the market. November 21, 1938, the respondent ordered thirteen hundred chicks from the appellant, which were to be hatched between March 10 and March 20, 1939, and were to be delivered when they were ten days old. About March 25, 1939, a representative of the appellant called upon the respondent and informed him that a disease known as chick bronchitis had broken out in the appellant's hatchery, and wanted the respondent to take the chicks when they were hatched as day-old chicks so as to avoid the danger of their being exposed to the disease. The respondent said that he could not get his brooder house ready so soon, but suggested that he would take them when they were five days old. This was agreed to. The respondent testified that at this time it was said to him by the representative of the appellant that the latter would be responsible for all losses in case the chicks developed the disease. The appellant's representative testified that the understanding was that all chicks which died of the disease, in case they contracted it would be replaced. The chicks were delivered when five days old, and nine days later they began coming down with chick bronchitis. The respondent notified the appellant, and it sent a representative to look at the chicks, who said the chicks had the disease. A few days later, at the respondent's request, the appellant took the chicks back with the exception of seventy-two which had died of the disease. The day after taking the chicks back the appellant mailed to the respondent a check for the amount he had paid for the chicks. A few days later, after the respondent consulted with his counsel, the check was returned. This action was then instituted, in which the respondent sought to recover the amount paid for the chicks, as well as other damages he claims to have sustained. The purchase price was thereafter deposited in the registry of the court.

The parties disagree as to the basis of the action. The appellant says that it is an action for breach of warranty. The respondent contends that it is not an action for breach of warranty, but an action based upon an oral contract to pay all losses sustained. We are of the view that the respondent's theory of the action is the correct one. Generally speaking, a warranty is a statement or representation having reference to the character, quality, or title of the goods. In Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 187 P. 319, 321, it was said: '* * * A 'warranty' is a statement or representation made by the seller of goods contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises that certain facts are or shall be as he represents them. * * *'

The first question is whether the respondent had a right to recover the purchase price, as well as damages. In the complaint, he sought both. The appellant calls attention to Rem.Rev.Stat. § 5836-69, which is one of the sections of the Uniform Sales Act, and this section covers the matter of the remedy of the buyer when there is a breach of warranty. There is nothing in that section, however, as we view it, which prevents the bringing of an action on an express agreement to reimburse the buyer for all losses that he may sustain.

If a contract is rescinded by mutual consent or by demand on one side acquiesced in by the other, and there is no express reservation of claims for damages previously sustained under it, there is an implied waiver of any such claims. Stanley Drug Co. v. Smith, Kline & French Laboratories, 313 Pa. 368, 170 A. 274; 3 Black on Rescission and Cancellation, 2d Ed., p. 1666, § 704.

In this case, the jury had a right to find that there was an express agreement that the appellant would be responsible for all losses, and, this being true, it did not deprive the respondent of the right to recover the purchase price, as well as losses after the chicks had been returned. In order to work a rescission, there must be an agreement to that effect, express or implied, or it must be rescinded by operation of law. In 12 Am.Jur. 1011, § 431, it is said: '* * * As a contract is made by the joint will of two parties, it can be rescinded only by the joint will of the two parties. It is obvious that one of the parties can no more rescind the contract, without the other's express or implied assent, than he alone can make it. A proposal to rescind a contract does not become a binding agreement unless it is accepted Before its withdrawal. * * *'

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