Owen v. Sears, Roebuck and Company

Decision Date01 December 1959
Docket NumberNo. 16366.,16366.
Citation273 F.2d 140
PartiesJohn L. OWEN, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Nicholas Granet, Portland, Or., for appellant.

Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, Portland, Or., for appellee.

Before BONE and HAMLEY, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

This is an appeal from the Trial Court's order directing a jury verdict for appellee (defendant below) at the close of appellant's (plaintiff's) case in chief in the trial of appellant's action against appellee for alleged breach of warranty of fitness to recover damages sustained by appellant when he was burned by a cigarette-lighted fire in a shirt he was wearing some time after it was purchased by his wife for him at appellee's Portland, Oregon store.

In the pretrial order which superseded the pleadings, appellee admitted as appellant contended that there is a diversity of citizenship between the parties and that more than $3,000.00, exclusive of interest and cost, is involved in this action. All other allegations and contentions of appellant were denied by appellee in the pretrial order. The Trial Court had and this Court has jurisdiction. 28 U.S.C.A. § 1332, and 28 U.S.C.A. §§ 1291 and 1294.

Appellee did not before the trial plead in its answer or contend as a defense in the pretrial order, as during and after the trial it has contended and does now contend, that appellant failed to give appellee notice of appellant's claim against appellee as required by the Oregon Uniform Sales Act (ORS 75.490). As to that, appellant argues that, by such failure of appellee to so plead and contend, appellee waived its right to have received such statutory notice and to now claim lack of such notice as a defense, but that anyway commencement of appellant's suit in this case constituted the statutorily required reasonable notice to appellee.

Appellee, however, at the trial contended and now contends that the giving of such statutorily required notice by appellant was an indispensable condition to the existence of appellant's claim and of his presently asserted cause of action, and that the commencement of appellant's suit did not constitute reasonable notice to appellee within the meaning of the Oregon Uniform Sales Act, supra. There is no contention that appellant gave to appellee any notice by any other means than by such suit commencement.

This case is based upon alleged breach by appellee of implied warranty of fitness of the shirt for use as an item of suitable wearing apparel for appellant at the time of the alleged fire.

Appellant's alleged cause of action for such breach of warranty arose in Oregon. This diversity of citizenship case involving such cause of action is based upon the law of that, not any other, state and not upon a federal law, and the rule of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, makes of primary and paramount concern the applicable statutory and case law of Oregon. In pertinent part the Oregon Uniform Sales Act, supra, provides:

"In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor." (Emphasis supplied.)

The Supreme Court of Oregon, in Tripp v. Renhard, 1948, 184 Or. 622, 200 P.2d 644, 653, interpreted the notice requirement of the above quoted Oregon statute as follows:

"It will be noticed that the provision exacts of a buyer, who is not favored by a stipulation to the contrary, a duty which he must perform if he wishes to hold the seller liable for a breach of warranty. The duty is the following: `give notice to the seller of the breach of any promise or warranty.\' The provision states clearly the time when the duty must be performed. The time schedule is: (1) `after acceptance,\' and (2) `within a reasonable time after the buyer knows, or ought to know, of such breach.\' By reverting again to the provision, it will be observed that its sweeping language is all inclusive. It is not applicable only in some forms of action, nor is it confined only to some defenses. In fact, it is not concerned with procedure. The object of its concern is something more fundamental than procedure. Procedure is subservient to or the handmaiden of rights. Section 49 is concerned with the recognition and extinction of rights.
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7 cases
  • Siebrand v. Eyerly Aircraft Company
    • United States
    • U.S. District Court — District of Oregon
    • August 16, 1961
    ...reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor." 3 Owen v. Sears, Roebuck & Co., 9 Cir., 1959, 273 F.2d 140. ...
  • Smith v. Pizitz of Bessemer, Inc.
    • United States
    • Alabama Supreme Court
    • August 18, 1960
    ...Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 240 N.W. 392; 2 Harper & James, Torts § 28.17 (1956); Owen v. Sears, Roebuck & Co., 9 Cir., 273 F.2d 140. See 71 A.L.R. We have considered the matter carefully and think that the notice provision is not restricted to so-called c......
  • General Matters, Inc. v. Paramount Canning Co.
    • United States
    • Florida District Court of Appeals
    • April 9, 1980
    ...the possession or control of the other for the purpose of ascertaining the facts and preserving the evidence. See Owen v. Sears, Roebuck & Co., 273 F.2d 140 (9th Cir. 1959). York contends that notice after destruction of the goods constituted reasonable notice under Section 672.607(3)(a). I......
  • Staff Jennings, Inc. v. Fireman's Fund Insurance Company, Civ. No. 61-96.
    • United States
    • U.S. District Court — District of Oregon
    • September 12, 1962
    ...reasonable notice of a claimed breach of warranty, as required by the Oregon Sales Act, ORS 75.010 et seq. See Owen v. Sears, Roebuck & Company, 273 F.2d 140 (9th Cir., 1959); Spada v. Stauffer Chemical Co., 195 F.Supp. 819 I am of the opinion that the plaintiff, as a loss payee, stands as ......
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