Tacoma Coal Co. v. Bradley

• Decision Date: 01 August 1891
• Citation: 2 Wash. 600,27 P. 454
• Parties: TACOMA COAL CO. v. BRADLEY ET AL.
• Court: Washington Supreme Court

27 P. 454

2 Wash. 600

TACOMA COAL CO. v. BRADLEY ET AL.

Supreme Court of Washington

August 1, 1891

Error to superior court, Pierce county.

Action by E. H. Bradley and M. H. Bradley, partners under the firm name of the Keystone Fire-Brick Company, against the Tacoma Coal Company, to recover for fire-brick sold and delivered. Judgment for plaintiffs. Defendant brings error. Reversed.

Sheeks & Goodwin, for appellant.

Snell & Bedford, for respondents.

ANDERS C.J.

This action was brought by the respondents to recover from the appellant the sum of $524.91, and interest, for certain fire-brick alleged to have been sold and delivered by the former to the latter between June 23 and August 6, 1888, at the agreed price of $15 per thousand. The defendant admitted in its answer to the complaint the delivery of the brick as alleged by plaintiffs, but denied that the same were worth the sum of $524.91, or any greater sum than $120; denied that $15 per thousand was a fair and reasonable price therefor, or that it agreed to pay that price; but admitted that it had not paid for the brick. As a counter-claim against the plaintiffs' demand, the defendant alleged that, at the time it ordered the brick, it specifically informed the plaintiffs that they were to be used in the construction of coke-ovens, and that it only agreed to purchase of plaintiffs such brick as were suitable for that purpose; that the brick shipped by plaintiffs to defendant, except about 8,000 thereof, were utterly worthless, as the plaintiffs well knew for building such ovens; that the defendant received said brick, relying upon the good faith and representations of plaintiffs, and were unable to discover the worthlessness of said brick until the same had been used in the construction of coke ovens, which defendant constructed properly and of good material, with due skill and care; that all of said ovens constructed of the brick furnished by plaintiffs to defendant, except the 8,000 admitted to be of good quality, did, immediately upon use, and owing solely to the negligence of the plaintiffs in the manufacture of said brick, fuse, melt, and fall in, and were utterly worthless that, as soon as the defendant discovered said worthlessness of said brick, it notified plaintiffs thereof; that, by reason of the negligence of the plaintiffs in furnishing defendant with brick unsuitable for the construction of coke-ovens, the defendant was damaged on account of freight paid for carriage of said brick $2,000, for labor in construction of said coke-ovens $250, and on account of defendant's loss of manufacture and sale of coke in the sum of $1,500; that it was damaged in all, after deducting $120 for good brick, in the sum of $4,630; for which sum it prayed judgment against plaintiffs. Plaintiffs denied each and every allegation of defendant's counter-claim, and upon the issues thus joined a trial by jury was had resulting in a verdict for plaintiffs for the sum claimed in the complaint.

It appears from the record that the respondents were engaged in the manufacture and sale of fire-brick at Layton Station in the state of Pennsylvania, and that appellant, a corporation, was engaged in the manufacture of coke at Wilkinson, in the territory, now state, of Washington. It also appears that the witness J. M. Kelly was employed by appellant to superintend the construction of its coke-ovens; that he knew the character of brick made by respondents, having formerly resided in Pennsylvania; that he was personally acquainted with respondent E. H. Bradley; and that he ordered, or caused to be ordered, by letter, the brick in controversy. It further appears that, previous to ordering the brick in question, appellant had ordered and received twenty-eight or thirty thousand brick from respondents for the same purpose for which the latter were required, and that they had been used in building or repairing coke-ovens. It was not contended on the trial that respondents did not know the use to be made of the brick by appellant. Respondent E. H. Bradley, testifying in his own behalf, admitted that he knew the brick were to be used in constructing coke-ovens; and on May 17, 1888, Superintendent J. M. Kelly wrote a letter to Bradley concerning these brick, in which he stated. "I sent an order to Tacoma today for 26,000 more crown bricks, and jambs and arches for nine more ovens, and 1,500 bottom tile. I suppose they will order from you. I want you to be very careful about the quality. Do not send anything but what is A No. 1, and send as quick as possible." And again on May 24, 1888, he wrote: "I sent an order to general office yesterday. I named 26,000 crown brick. When the order reaches you you will see what I want. Make the order 28,000 crown brick. Send me the best. This is a trade you will want to hold, and you can only do it by sending nothing but the best." On the trial the claim for damages on account of loss of sale of coke was abandoned, and no very satisfactory testimony appears respecting other items of damage claimed, although some testimony was adduced tending to show the amount paid for freight, and for constructing ovens claimed to have been worthless.

There can be no doubt that the contract between the parties amounted to a warranty on the part of the respondents of the quality of the brick ordered by appellant, and the respondents seem to have recognized this fact on the trial and very properly produced testimony tending to show that they had discharged their obligation to appellant by sending the character of brick required by the latter. But counsel for respondents insist that, if the brick were defective in quality, and not such as were ordered, the defect was patent; and that appellant, having inspected them, and having failed to return or offer to return them, can claim no damage on account of such defect. The court below seems to have adopted the view of counsel, and instructed the jury as follows: "(10) You are further instructed that in case you find a warranty of quality by these plaintiffs of the goods in question, and a breach thereof, then, in all events, the plaintiffs would only be responsible for such damage as the difference in the price of said goods as represented and the value of the goods as they really were, together with such other damages as were the direct and immediate consequence of the said breach; but that if the defendant, before using the same, had an opportunity to inspect said goods, and did not do so, and if upon such inspection could have ascertained the defects claimed, then said defendant is not entitled to any damages. (11) You are...