Puratich v. Pacific Marine Supply Co., 25808.

• Decision Date: 02 December 1935
• Docket Number: 25808.
• Citation: 184 Wash. 531,51 P.2d 1080
• Parties: PURATICH v. PACIFIC MARINE SUPPLY CO.
• Court: Washington Supreme Court

51 P.2d 1080

184 Wash. 531

PURATICH v. PACIFIC MARINE SUPPLY CO.

No. 25808.

Supreme Court of Washington

December 2, 1935

Department 2.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Action by Paul Puratich against the Pacific Marine Supply Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with direction.

G. E Steiner, Karl H. Kober, and Roberts & Skeel, all of Seattle for appellant.

Monheimer & Griffin, of Seattle, for respondent.

MAIN Justice.

This action was brought to recover the value of a number of bales of cotton netting which, it is claimed, were defective, and damages for the loss sustained by reason of failing to catch the quantity of fish which would have been caught had the netting, which was worked into the purse seine, not been defective. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff for $2,500 for loss of fish and $445.96 for the loss of the net. The defendant moved for a judgment notwithstanding the verdict, and, in the alternative, for a new trial, both of which motions were overruled. From the judgment entered upon the verdict, the defendant appeals.

The facts which will present the controlling questions here for determination may be summarized as follows: The appellant Pacific Marine Supply Company, is a corporation organized under the laws of this state, with its principal place of business in Seattle, where it is a dealer in marine merchandise, including fish netting. The respondent, for fourteen or fifteen years, had been engaged in the business of purse seine fishing for salmon in Puget Sound and adjacent waters. He was the owner of the Lone Eagle, a purse-seine type of fishing boat. In November, 1932, the respondent ordered from the appellant a quantity of four-inch mesh fish netting for use during the season of 1933. This netting was paid for and delivered to the respondent May 5th of that year. At the time the netting was delivered and paid for, the respondent received from the appellant a bill or invoice describing the netting in detail. Between the heading of the bill and the itemized statement of the purchases, there was printed in red ink the following: 'This netting is sold to and accepted by the buyer on the express condition that our responsibility under any guarantee, expressed or implied, ceases after netting has been put into the water or after netting has been treated in any manner, for any purpose, whether by us at customer's request, or by customer or others.'

The netting was transported by the respondent to his home at Gig Harbor and there used, with other netting, in the construction of a purse seine. The netting was manufactured in strips about 22 feet wide, and there were five strips in the seine in question. The top strip was old netting which was used by the respondent during previous seasons. The second and third strips, counting from the top, were a part of the netting in question in this case. The fourth and fifth strips were also old netting which had been used by the respondent in former seasons. In the construction of the purse seine, these strips were lashed together. A succession of corks was attached to the top of the seine, which carries the weight thereof in the water, and through which a line is passed known as the 'cork' line. A succession of heavy lead rings was attached to the bottom of the seine, through which a line is passed, known as the 'lead' line. In practice, the cork line is made about 10 per cent. longer than the lead line so that the seine, when set, will form a bag. The seine, when completed, is about 1800 feet long and about 110 feet deep.

After the completion of the seine, the respondent, with his vessel and crew, proceeded to the fishing waters of Puget Sound and fished during the season of 1933, the results of which were unsatisfactory because they were not getting as many fish as some of the other vessels. At the end of the season, the seine was dismantled and dried.

In March, 1934, the respondent began to prepare the net for the fishing season of that year. He claims that he then discovered for the first time irregularities in the size of the mesh in the strips of netting purchased from the appellant. The theory of the action was that the irregularity in the size of the mesh used caused that side to be longer than the other side, and that in operation it did not form the bag necessary for successful fishing, and on that account the fish escaped which otherwise would have been caught. The netting purchased from the appellant consisted of six bales, three of which were used in the construction of the seine.

As already stated, the action was brought to recover for the loss sustained by the purchase of the seine and for the damages sustained by the failure to catch the quantity of fish that would have been caught had the same not been defective. Upon the question of whether the seine was defective or not, the evidence was in direct conflict.

The first question is whether the appellant, a dealer in marine supplies, including fish netting, had impliedly warranted that the netting was suitable for the purpose for which it was purchased.

Rem.Rev.Stat. § 5836-15, which is one of the sections of the uniform sales act of this state, provides:

'Subject to the provisions of this act and of any statute in that behalf, there is no implied

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