Suryan v. Lake Washington Shipyards, 22503.

• Citation: 163 Wash. 164,300 P. 941
• Decision Date: 22 June 1931
• Docket Number: 22503.
• Parties: SURYAN v. LAKE WASHINGTON SHIPYARDS.
• Court: Washington Supreme Court

300 P. 941

163 Wash. 164

SURYAN v. LAKE WASHINGTON SHIPYARDS.

No. 22503.

Supreme Court of Washington

June 22, 1931

Department 2.

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

Action by Richard D. Suryan against the Lake Washington Shipyards in which defendant filed a counterclaim. From the judgment defendant appeals, and plaintiff cross-appeals.

Judgment modified, and, as modified, affirmed.

Kerr &amp McCord, of Seattle, for appellant.

Bogle, Bogle & Gates, and Claude E. Wakefield, all of Seattle, and H. C. Barney, of Anacortes, for respondent.

BEELER J.

On February 21, 1928, the parties to this suit entered into a written contract whereby the defendant agreed to build a purse seine fishing boat for the plaintiff, named Lindberg, which defendant's officers knew was to be used for fishing in Alaskan waters. The defendant completed and delivered the boat on May 23, 1928, and within about one week thereafter the plaintiff proceeded to Alaska. On June 12, 1928, the plaintiff engaged in fishing at Steamboat Bay in the waters of Alaska, and, after having about 900 barrels of herring on board the Lindberg started to a nearby cannery, and, while so doing, the boat took on a great deal of water and swamped, and was saved from sinking by the plaintiff throwing overboard 300 barrels of said herring, and by the timely arrival and aid given by the Stanford, another fishing boat, which rendered meritorious salvage services and kept the Lindberg afloat and towed it into port where temporary repairs were made on June 13 and 14.

The plaintiff brought this action to recover various items of damage which he alleged he had sustained because the boat was improperly constructed. The defendant in its answer denied the allegations of faulty construction, and by way of counterclaim alleged that, while building the boat, the plaintiff had ordered certain extras and additions of the reasonable value of $1,434.53, on which there was a balance due of $1,009.53.

The trial court found that the boat was not staunch, tight, nor seaworthy, but was of faulty and improper construction, in that green, instead of seasoned, lumber had been used, and that the caulking was generally insufficient, thereby rendering the boat unfit for herring fishing in Alaskan waters; that such faulty and improper construction was unknown to the plaintiff at the time the boat was delivered, and could not by the use of due diligence and inspection have been ascertain or discovered by him. The parties are in dispute over six items. Some of these items were allowed by the trial court, some allowed in part only, and one item entirely disallowed. The court awarded plaintiff damages on four items. On item 1, $412 for loss of profits on 800 barrels of herring which the trial court found the plaintiff could reasonably have caught on June 13 and 14 while the boat was undergoing repairs. On item 2, $154.50 loss on the 300 barrels of herring which the plaintiff was compelled to throw overboard at the time the Lindberg swamped. On item 3, $1,200 salvage paid to the Stanford. On item 4, $481.90 general damages allowed plaintiff for depreciation in the value of the boat. On item 5, the court disallowed plaintiff's claim for salvage charges in the sum of $200 which he maintains he incurred in having his seine rescued. On item 6, the court allowed the defendant $1,434.53 for extras in the construction of the boat.

The defendant has appealed from the judgment awarding damages to the plaintiff on items 1 to 3, inclusive, and the plaintiff has cross-appealed from the judgment disposing of items 4 to 6, inclusive, in the manner above indicated.

The defendant admits there was an implied warranty that the boat would be fit for the use for which it was constructed, but contends that the plaintiff cannot recover because he failed to give notice of the defects within a reasonable time after discovery, as required by the Uniform Sales Act. Section 5836-49, Rem. 1927 Supp., 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 fail 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.'

The buyer, in order to preserve his rights after acceptance where there is an implied warranty, must give the seller notice of the defect or defects within a reasonable time after discovery. What constitutes a reasonable time is a question of fact depending upon the circumstances of each case. On June 12, 1928, at the time the leakage occurred, the boat was towed into port where temporary repairs were made. With the aid of the temporary repairs, the plaintiff was able to use the fishing boat throughout the fishing season. On August 14, 1928, while fishing was still in progress, the plaintiff, in answer to a request for payment on account of the balance due for the construction of the boat, sent a telegram which reads as follows:

'Sorry can not help out now Fishing very poor Hardly making expenses Stop Do not think additional charges fair as part of stern of boat was not caulked and we almost lost boat and lives with a load.'

After the fishing season closed, the boat was brought to its home port and a survey made. Thereupon, on October 20, 1928, the following letter was sent by plaintiff to defendant:

'On examination of the boat built by you for me under said contract it was found that none of the seams above the guards had been caulked at all although the same were filled with putty and painted. It was through those uncaulked seams that the boat took water as above stated and on account of your failure to caulk said seams I have been to an actual damage of about $5,000.00, and I will look to you to reimburse me for actual damages sustained. This damage does not include $1,200.00 salvage claim of the Stanford which claim I understand has been allowed by the insurance company.

'I will further state that corking below the guard is not put in in a workmanlike manner and I am informed that the whole boat will have to be recorked.'

The telegram of August 14 brought knowledge to the officers of the defendant company of the defective construction of the boat. Such knowledge was again brought to their attention by the letter of October 20. Furthermore, this is not a case of one selling an article which had been manufactured or produced by another. H...