Long v. 500 Co.

• Citation: 123 Wash. 347,212 P. 559
• Decision Date: 01 February 1923
• Docket Number: 17189.
• Court: United States State Supreme Court of Washington
• Parties: LONG et al. v. 500 CO.

212 P. 559

123 Wash. 347

LONG et al. v. 500 CO.

No. 17189.

Supreme Court of Washington

February 1, 1923

Department 1.

Appeal from Superior Court, Pend Oreille County; D. H. Carey, Judge.

Action by J. H. Long and another, copartners as Long & Harris against the 500 Company, a corporation. From judgment for plaintiffs, defendant appeals. Reversed and remanded for a new trial.

Allen Winston & Allen, of Spokane, for appellant.

J. A Rochford and E. L. Sheldon, both of Newport, for respondents.

FULLERTON J.

This is an action brought by the respondents, Long & Harris, against the appellant, the 500 Company, to recover in damages as for breach of warranty in the sale of an automobile truck by the appellant to the respondents. In a trial before a jury in the court below there was a verdict in favor of the respondents and from the judgment entered thereon the appeal is prosecuted.

The evidence on the part of the respondents, and which the jury saw fit to believe, tended to show the following facts: In January, 1920, the respondents were negotiating for a contract to haul sawlogs and kindred timber products, and desired to purchase an automobile truck for that purpose. The appellant, hearing of their desire to purchase a truck, and knowing the purposes for which it was to be used, brought from Spokane, its place of business, to Newport, the place of residence of the respondents, a Day-Elder auto truck, of 3 1/2 tons capacity, and offered to sell it to the respondents, representing and guaranteeing that the truck was suitable for respondents' purposes, and would 'stand up and do the same work, as any other 3 1/2-ton auto truck, excepting the White auto truck.' A contract was entered into by which the respondents purchased the truck at an agreed price of $4,000, of which price $900 was paid in cash, and the balance agreed to be paid in monthly installments of $310 each, commencing with the 15th day of March following. The respondents took possession of the truck, and made some three or four payments on the purchase price, the whole, with the original payment, amounting to the sum of $1,720.65. The truck, when put to the work of hauling logs, would not stand the strain of transporting its capacity load. The rear axle broke a number of times, and was replaced, finally breaking in such a manner as to destroy the housing covering the rear bearing. At about the time of this last break the respondents notified the appellant to repair the truck so as to make it perform the work for which it was purchased. Shortly thereafter the appellant sent a man for the truck, and it was taken to Spokane, where, a few days later, the respondents were summoned to consult with reference to its defects. At this consultation it was determined that the rear axle was not of sufficient strength to stand the strain put upon it, and that the truck was geared too high for logging purposes. It was agreed that certain changes were necessary to remedy these defects, but, owing to a disagreement as to which of the parties should bear the expense of the contemplated repairs, the repairs were not made. The appellant, however, refused to return the truck to the respondents on their demand, and afterwards converted it to its own use.

Of the errors assigned, the first to be noticed is that the court erroneously held that there was an implied warranty of the fitness of the truck for the purposes for which it was intended to be used. The contention is that there was a sale of a definite described article; hence no implied warranty of fitness for the purpose for which it was sold, under the rule of the cases of Hoyt v. Hainsworth Motor Co., 112 Wash. 440, 192 P. 918, and United States Cast Iron, etc., Co. v. Ellis, 117 Wash. 601, 201 P. 900. These cases, it is true, sustain the general principle that, where a known, described and definite article is ordered of a dealer, who is not the manufacturer of the article, and an article of the known and described kind is delivered, there is no warranty that the article supplied is suitable for the purpose for which the buyer intends to use it, even though the buyer may have made known to the dealer, at the time he gave the order, the intended use, but we think the rule so announced inapplicable to the facts of the present case. The order here was not for a truck of a specific kind or manufacture, but was an order for a truck suitable for hauling sawlogs and timber products. The appellant produced the particular truck, and sold it to the respondents knowing the purpose for which it was intended to be used. The facts, therefore, bring the case within the rule of the case of Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 187 P. 319, the rule recognized in the second of the cited cases as being the converse of the rule there held applicable. In other words, there was here a sale of a particular article for a particular purpose, and the rule of implied warranty of fitness for the purpose is applicable.

The second contention is that the evidence fails to show that the automobile truck was sold by the appellant to the respondents, but, on the contrary, shows conclusively that it was sold to them by one Hall. The materiality of this is not to us at once apparent, as the truck was concededly the property of the appellant, and, if it was in fact sold by Hall, he sold it as the agent of the appellant. But since the parties have themselves treated it as material, we have examined the evidence on the question. The evidence does indeed, present an aspect in some respects strange, but we cannot think it so far conclusive as to warrant us holding that it left nothing for the jury to pass upon. As we view it, it was in decided conflict,...