McCaw v. Advance-Rumley Thresher Co., Inc., 22384.

• Decision Date: 22 September 1930
• Docket Number: 22384.
• Citation: 158 Wash. 533,291 P. 319
• Parties: McCAW v. ADVANCE-RUMLEY THRESHER CO., Inc.
• Court: Washington Supreme Court

291 P. 319

158 Wash. 533

McCAW v. ADVANCE-RUMLEY THRESHER CO., Inc.

No. 22384.

Supreme Court of Washington

September 22, 1930

Department 1.

Appeal from Superior Court, Walla Walla County; John L. Sharpstein Judge.

Action by E. N. McCaw against the Advance-Rumley Thresher Company Inc. While the action was pending, the plaintiff died, and E R. McCaw, executor of the estate of E. N. McCaw, was substituted as plaintiff. From a judgment for defendant on its cross-complaint, the plaintiff appeals.

Affirmed.

H. B Noland, of Walla Walla, for appellant.

Williams & Cornelius, of Spokane, for respondent.

TOLMAN J.

This action was commenced by E. N. McCaw during his lifetime, but, while it was pending, McCaw died, and the executor of his estate was substituted.

In the original complaint, which was verified July 23, 1928, it was alleged that in May, 1926, McCaw purchased from the defendant two 1926 model Hillside combine harvesters of its make, paying a certain amount in cash and giving his three notes for $1,400 each, due October 1, 1926, and annually thereafter, the first of which had been duly paid. Certain warranties by the defendant were pleaded, and it was alleged these were breached, in that the machines proved upon trial to be defective and insufficient and that the defendant failed to furnish without charge new and improved parts to take the place of those which failed, and wholly refused to comply with its written agreement to furnish improved 1927 parts in place of those found to be inefficient. It is alleged that the plaintiff was specially damaged in this respect in the sum of $1,666. General damages are also alleged without any amount being claimed therefor, and the prayer is for an accounting between the parties, that plaintiff's damages be offset against the unpaid notes, and that he be permitted to pay the balance without further costs or interest. Thereafter an amended complaint was filed in which it was alleged that the machines were wholly worthless, that the plaintiff had been obliged to cease attempting to use them to his further damage in the amount of the whole purchase price. The allegations as to general damages were also greatly enlarged, and the prayer was for a judgment of $6,871 over and above the amount of the unpaid notes.

To this complaint an answer was interposed consisting of denials and a counterclaim, and a cross-complaint was filed seeking judgment on the two unpaid notes and the foreclosure of a chattel mortgage on the machines given to secure the purchase-money notes.

The plaintiff then filed a reply and counterclaim in which he greatly enlarged all of the allegations of his amended complaint as to damages and prayed for special damages in the sum of $6,033.20 and interest, less the amount of the unpaid notes, and for general damages in the sum of $5,191.36 and for costs.

The case was tried to the court sitting without a jury, resulting in a judgment and decree denying any relief to the plaintiff, granting judgment in favor of defendant on its cross-complaint for the amount of the two unpaid notes with interest, for $400 attorney's fees, and directing a foreclosure of the chattel mortgage. From this judgment the plaintiff has appealed.

In addition to the outline of the issues already given, it seems necessary to say that the machines were sold and purchased under a written contract containing the usual ironclad features generally used in selling agricultural machinery, from which contract we quote: 'Said machinery is warranted to be well made and of good material, and with proper use capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions, but any machine or part thereof not manufactured for or by Vendor, or which is second-hand, rebuilt or repaired, is not warranted by law or otherwise.

'Purchaser shall not be entitled to rely upon any breach of above warranty or to rescind this contract or to any claim or set off against the Vendor because of any breach, unless: (a) Notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registered letter addressed to Vendor at its head office posted within four days after such discovery; (b) Such defect or breach appears within ten days (10) after the first use of the goods; (c) The Vendor fails to remedy such defect or breach by substitution of parts or otherwise within a reasonable time after receipt...