Turner v. Wenatchee Vinegar Co., 22397.

• Decision Date: 28 April 1931
• Docket Number: 22397.
• Citation: 298 P. 683,162 Wash. 313
• Court: Washington Supreme Court
• Parties: TURNER v. WENATCHEE VINEGAR CO.

298 P. 683

162 Wash. 313

TURNER v. WENATCHEE VINEGAR CO.

No. 22397.

Supreme Court of Washington

April 28, 1931

Department 2.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Action by Ralph S. Turner against the Wenatchee Vinegar Company, in which defendant filed a cross-complaint. From the judgment defendant appeals.

Affirmed.

Hughes & Hughes, of Wenatchee, for appellant.

Glenn R. Madison, of Bellingham, for respondent.

BEALS J.

Defendant corporation, operating a plant for the manufacture of vinegar in Chelan county, ordered from plaintiff, who is engaged in the business of manufacturing wooden tanks and similar products in Whatcom county, three wooden tanks, twenty-two by sixteen feet, intending to use them, as plaintiff was informed, for the storage of vinegar. Written specifications for the tanks were submitted to plaintiff and accepted by him, each tank to cost defendant $525, f. o. b. Wenatchee. The specifications called for best grade, fir tank stock kiln-dried, the order being for immediate shipment. The tanks were shipped, 'knocked-down,' early in October, 1927 whereupon defendant discovered that the fir of which the staves had been made was not kiln-dried. Notwithstanding this fact, defendant forthwith proceeded to erect one tank, and to use the same for the storage of cider. The tank leaked, and, after some correspondence between the parties, plaintiff sent to Wenatchee one of his men, Mr. D. A. Osborn, to assemble the other two tanks. Mr. Osborn erected a second tank, which also leaked, to defendant's dissatisfaction. Later defendant had the staves of the third tank recut and the tank assembled, it being then satisfactory. The parties not being able to agree upon any settlement, plaintiff brought this action seeking judgment for the sum of $1,472.66, whereupon defendant cross-complained against plaintiff for the sum of $3,503.50 (admitting an offset for the contract price of the tanks), defendant's claim being made up of items of damage for loss of cider, for money paid for work on the tanks, and for freight. The action was tried to a jury, which returned a verdict in favor of plaintiff for the amount demanded in his complaint. From a judgment entered against it upon the verdict, defendant appeals, contending that the verdict is not supported by the evidence, is excessive, and is against the law; that the court erred in giving to the jury instruction No. 6; and that the court was guilty of prejudicial misconduct in commenting upon the evidence, and in addressing a remark to a witness for appellant. Appellant also contends that the trial court erred in overruling its motion for a new trial and in entering judgment on the verdict.

The evidence as to the fitness of the respective portions of the tanks as prepared by respondent, and as to the manner in which the tanks were assembled, is extremely conflicting, and it is difficult to form an opinion on the merits of the controversy. Appellant admits that when the material arrived at its plant it knew that the same was not of kilndried lumber. Respondent admits that the lumber was not kiln-dried, but contends that it was air-dried, the equivalent of or better than kiln-dried material. Appellant accepted the material and proceeded to use it. Under the circumstances shown, appellant is not entitled to a ruling that as matter of law it is entitled to avail itself of the fact that the material was not kiln-dried. Respondent contends that the first tank which was assembled by appellant was improperly put together, in that appellant did not use enough staves, and that consequently the tank necessarily leaked at the top and bottom. As to this tank, we are clearly of the opinion that the question of whether or not the material was properly prepared by respondent, and improperly assembled by appellant, constituted a question of fact upon which the jury was entitled to pass. Appellant contends that all of the tank staves were improperly beveled, in that the angle of the bevel left open cracks (as to the width of which the testimony is in dispute) between the staves on the inside of each tank. Respondent contends that this was proper construction, as the liquid to be placed in the tanks would cause the inner portion of the staves to expand more than the outer portion. Appellant endeavored to correct the leaking of the tanks by calking the same, and expended a considerable sum of money in this work. Respondent contends that this calking caused the tanks to leak, as the insertion of the calking material between two staves in an endeavor to stop a leak at one place would cause the staves to separate at other points and result in further leakage.

As above stated, the second of the tanks to be assembled was constructed under the supervision of respondent's employee, D. A. Osborn. Respondent contends that the material was all properly cut, and that the second tank was properly assembled, and that if Mr. Osborn's instructions as to the use of the same had been carried out, the second tank would not have leaked. Mr. Osborn testified that he instructed appellant's officers to fill the tank with water and let it stand a week to tighten. Appellant filled the tank with vinegar, which, however, was an immaterial variance, as it seems to be agreed that vinegar and water would have the same effect upon the swelling of the wood of which the tank was constructed. The tank leaking somewhat when first filled, Mr. Osborn undertook to calk the 'chine seam,' which is a portion of the tank near or at the bottom. Mr. Osborn denied that he did any...