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4. COSTS 240_SEVERAL CLAIMANTS - AD-, other claimants were satisfied therefrom. VERSE POSITION-APPEAL.

The Western Electric Company appealed, Neither will they be awarded costs against the contractor's surety, since as between them

serving notice on all other parties to the and such surety there was no dispute.

suit, secured a reversal of the decree of the (Ed. Note.--For other cases, see Costs, Cent. circuit court and established its right to parDig. $8 922-926; Dec. Dig. Om 240.]

ticipate in the balance unpaid of the conDepartment 1. Appeal from Circuit Court, tract price and to recover from the contracMultnomah County; Henry E. McGinn, tor's surety. The decree of this court awardJudge.

ed costs and disbursements in favor of the Action by the City of Portland, on the re- Western Electric Company against the Title lation of the Van Emon Elevator Company, Guaranty & Surety Company, but denied such and the Van Emon Elevator Company, against indemnity to all other parties. The defendant the American Surety Company of New York Westinghouse Pacific Coast Brake Company and others, Title Guaranty & Surety Com- now moves for a modification of the decree 50 pany and others, and the contractor for as to allow it costs and disbursements against whom they were surety, to recover for ma- the appellant, Western Electric Company, and terials furnished in the erection of a build the Title Guaranty & Surety Company. ing. The Western Electric Company and [1] Let it first be set down that in equitaothers were joined as materialmen and sub- ble proceedings the allowance of costs and contractors for the purpose of determining disbursements rests in the discretion of the and adjusting their rights of participation in court. the unpaid balance of the contract price. (2-4) As influencing the exercise of this From a decree of the circuit court denying | prerogative in this instance, it will be observit participation until the claims of the othered that the decree of the circuit court in materialmen were satisfied, the Western Elec- favor of all the claimants except the appeltric Company appealed, securing a reversal lant Western Electric Company excluded the on that point. On motion by defendant West- latter from participation in the city fund uninghouse Pacific Coast Brake Company to til the claims of the former were satisfied. modify the decree, so as to allow it costs In this court this preference was overturnagainst appellant, Western Electric Company, ed, and the appellant was admitted to share and respondent Title Guaranty & Surety in the fund like all other claimants. They Company. Motion overruled.

were proper and necessary parties to the apSee, also, 153 Pac. 786.

peal, and the appellant prevailed against Moser & McCue and Wm. A. Williams, all them in that respect. This is a sufficient of Portland, for appellant. W. P, La Roche, reason for denying any of them costs or disCity Atty., for respondent city of Portland. bursements against the appellant. It might Reed & Bell, of Portland, for respondent Van properly have been ground for awarding Emon Elevator Co. Kollock & Zollinger, of costs against them. There was no dispute in Portland. for respondent Title Guaranty & this court between them and the Title GuarSurety Co. Chas. J. Schnabel and J. B. Of- anty & Surety Company; hence no equitable ner, both of Portland, for Westinghouse Pa- ground exists here for giving any of them cific Coast Brake Co. J. A. Beckwith, of costs or disbursements against it. Portland, for A. G. Electric & Manufacturing The principal dispute before us was beCo.

tween the Title Company and the Western

Company wherein the latter contended for BURNETT, J. Under a clause of the char- | the allowance of its claim against the former ter of the city of Portland the relator insti- which had been wholly denied by the circuit tuted a suit against a contractor for the erec- court. Having succeeded in establishing its tion of a city building and his surety to re-entire demand against the Title Company, it cover for materials furnished by it and in- would ill accord with equitable consideracorporated in the structure. Other material- tions, in the absence of any unusually differmen and subcontractors were made defendent conditions, to deny costs in favor of the ants, so that, among other things, their rights appellant and against the Title Company. to participate in the balance of the contract In the adjustment of costs in this court the price remaining unpaid and in possession of other claimants fared quite as well as they the city might be determined and adjusted. had any reason to expect and must be conThe circuit court denied relief to the Western tent. Electric Company, a defendant materialman, The motion is overruled. as against the contractor's surety, the Title Guaranty & Surety Company, and postponed MOORE, C. J., and McBRIDE and BENits participation in the city fund until all SON, JJ., concur.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

complete contract between the parties and specCARKONEN V. COLUMBIA & P. S. R. CO. ifying highway paving brick at $17.85 per thou(No. 12325.)

sand net, evidence for the buyer that the brick

actually delivered to him was No. 2 brick at (Supreme Court of Washington. Jan. 7, 1916.) | $13.75 per thousand was admissible, as the buyDepartment 1. Appeal from Superior

er in a suit for the purchase price of goods may

show that they were not what he contracted for. Court, King County; John E. Humphries,

(Ed. Note. For other cases, see Sales, Cent. Judge.

Dig. 88 473-491; Dec. Dig. @ 181.] On motion for rehearing. Rehearing de- 3. SALES C285 - BREACH OF WARRANTY – nied.

ACCEPTANCE-RIGHT TO DAMAGES. For former opinion, see 150 Pac. 1162.

In a seller's action for the price of brick

sold and delivered as provided by a shipping orBrady & Rummens, of Seattle, for appel- der constituting a complete contract between lant. Farrell. Kane & Stratton and Stanly the parties warranting that the brick would be J. Padden, all of Seattle, for respondent.

| highway paving brick, the buyer, who had accepted and used the brick delivered without no

tifying the seller, before the action, that they PER CURIAM. Respondent has applied were of a quality inferior to that contracted for, for rehearing en banc, and urges, among oth- and who was not himself seeking to rescind the er things, that the motion for judgment not contract, was entitled to set off the difference in

price between the quality warranted and the withstanding the verdict was granted before

quality actually received. the decision of this court in Forsyth v. Dow, (Ed. Note. For other cases, see Sales, Cent. 81 Wash. 137, 142 Pac. 490, which was decid- Dig. 88 806-808, 810; Dec. Dig. Om 285.) ed August 14, 1914, while the notice of ap 4. SALES O 179 - RIGHT TO INSPECTION peal herein was filed June 15, 1914. Wel DAMAGES FOR INFERIOR QUALITY. make this additional statement in justice to

| Where goods are sold, by contract provid

ing for an inspection, but containing no warcounsel for respondent, that it may not ap

ranty, the buyer's right to recover damages for pear that the making of the motion at such defects, etc., does not survive his acceptance afttime was a careless oversight of a question er opportunity to discover such defects, unless

notice is given to the seller, or the buyer returns of practice on the part of counsel.

or offers to return the goods. It is also urged that we should have fol (Ed. Note. For other cases, see Sales, Cent. lowed the precedents set in Pierce v. Seat-| Dig. 88 456-468; Dec. Dig. Om 179.] tle Electric Co., 83 Wash, 141, 145 Pac. 228, and Boyce v. Chicago, Milwaukee & Puget

?! Department 2. Appeal from Superior Sound Ry. Co.. 82 Wash. 204. 144 Pac. 27. / Court, King County; John E. Humphries, decided after the Forsyth Case, in which Juage. cases we for the time being suspended the op

| Action by the National Surety Company eration of the rule established in the Forsyth against Andrew Peterson, the Denny-Renton Case, because of the fact that the practice

Clay & Coal Company, and others, with condemned by the Forsyth decision had not cr

cross-action by the Denny-Renton Clay & always been understood, and the cases cited

Coal Company. Judgment for the Dennywere pending when the Forsyth Case was

Renton Clay & Coal Company against Peterdecided. Such was true in this case also.

son and the National Surety Company, and But the great number of such cases coming they appeal. Reversed and remanded. here has impelled us to adhere to the rule John W. Roberts and George L. Spirk, established by the Forsyth Case; otherwise both of Seattle, for appellants. Ballinger, the continual exceptions would require end- Battle, Hulbert & Shorts, of Seattle, for reless distinguishing decisions, or result only spondent. in additional confusion. Hence we have decided to hereafter in all cases hold to the MORRIS, C. J. This is an appeal from a rule adopted in the Forsyth Case.

judgment in favor of the Denny-Renton Clay & Coal Company, respondent herein, against

Andrew Peterson for the price of a quanPETERSON et al. v. DENNY-RENTON

tity of paving brick, bought by Peterson CLAY & COAL CO. (No. 12518.)

from the company and used by him in build(Supreme Court of Washington. Jan. 8, 1916.)

ing a portion of state highway No. 4, north

of the city of Seattle, for the construction 1. EVIDENCE O 442—PABOL EVIDENCE-CONTRACT OF SALE.

of which he held a contract with King counWhere a shipping order for brick was upon ty. its face a complete contract between the parties, After the contract was completed a numcovering all the terms of the order, the buyer's

e buyer's ber of liens were filed against the work, offer of parol evidence to prove a different contract, not tending to establish fraud in the pro

and the National Surety Company, surety curement of the shipping order but only to modi on Peterson's bond to the county, instituted fy it, was inadmissible.

this action to have determined the rights of (Ed. Note.-For other cases, see Evidence, the various lien claimants to the funds in Cent. Dig. $8 1874–1897; Dec. Dig. 442.)

the hands of the county commissioners due 2. SALES 181 - ACTION FOR PRICE - EVI.

to Peterson. The respondent was, among DENCE.

In an action for the price of brick sold un- others, named as defendant, and appeared der a shipping order constituting on its face a by answer and cross-complaint, seeking to recover a balance of $40,836.35 claimed to , fused, whereupon Peterson sought to show be due on the brick purchased from it by the circumstances under which the shipping Peterson, Peterson admitted a balance of order was signed, to establish that it was $27,152.58 due the respondent, and made not a complete contract, but only an order tender of that amount, but denied the bal. to ship brick previously contracted for. This ance claimed by the company. To prove the offer was likewise refused. The ruling of contract of sale the company introduced over the trial court in excluding this evidence objection a shipping order which reads as is assigned as error. The shipping order follows:

was upon its face a complete contract be

DENNY-RENTON CLAY & COAL CO. Shipping Order No. Renton 1004

Date Sept. 20, 1913. Ship to Andrew Peterson at as instructed Route as instructed Ship when Hold for shipping instructions Charge to Andrew Peterson

Address

Railway Exchange Building,

L. I. D. No. Seattle, Wash. Location of Work North Trunk Road

Permanent Highway No. Owner's Name

Address Sold F. 0. B. cars Renton factory

Freight allowed to Purchaser's Order No.

Reg. No.

Frt. Rate Minimum Weight 60,000 Lbs.

[blocks in formation]

Approx.
4,000,000 Highway Paving Brick

Note by G. W. P. (Will want brick in about 3 weeks from date and then fully 40,000 per day steady shipment. Will advise several days in advance.)

Original. Credit 0. R. T. W. L. Notice to Factory: If any portion of this order cannot be alled as specified, advise this office in writ

ing immediately on receipt of order.

Price Seventeen dollars d twenty-five cents per thousand Net.

($17.25) Terms. Net cash on or before the tenth of the month following date of shipment.

Purchaser Please Note: We hand you herewith duplicate copies of your valued order as same has been

entered for delivery by us. If same is correct, please sign and return original to us and keep dupli

cate for your records. Il not correct, please advise stating wherein an error appears. Note: All contracts, sales and deliveries are contingent upon delays caused by fire, strikes, accidents, floods, carriers and other conditions beyond our control.

Denny-Renton Clay & Coal Co. Date Sept. 22, 1913.

[Sign here.] Andrer Peterson.

Peterson sought to show that this shipping, tween the parties covering all the terms of order was not his contract with the brick the order, and, as the offer of testimony to company, but that he had contracted with prove a different contract did not tend to it for a quality of brick known as No. 2, at establish fraud in the procurement of the a price of $13.75 per M., and had actually shipping order, but only to modify it by received and used that kind of brick in the parol testimony, the trial court held corconstruction of the road. All his offers of rectly that the evidence was inadmissible. such testimony were refused by the trial [2] A price list of the respondent was incourt, on the ground that the shipping or-troduced in evidence showing the price of der was a written agreement constituting No. 2 brick as $13.75 per thousand, and the the contract of purchase between the par- amount tendered in court by Peterson would ties, and oral testimony could not be re- be the correct amount due the respondent ceived to vary or contradict the terms there for the brick delivered if it was No. 2 of. At the conclusion of the testimony and brick. Peterson made offers to prove by nuoffers to prove each party challenged the merous witnesses that the brick actually desufficiency of the evidence to sustain a judg- livered to him by respondent was No. 2 ment for the adverse party, and moved for brick, and not highway paving brick, as judgment. The trial court thereupon took provided for in the shipping order. The trial the case from the jury and entered judg court refused this offer, and this, we think, ment for the respondent and against both was error. It would seem a travesty on National Surety Company and Peterson. I justice to hold that a party could not show

[1] By his offers of testimony Peterson in a suit to recover the purchase price that sought to show that prior to the signing of the article delivered was not the article the shipping order he had entered into a contracted for, but one of inferior quality written contract with the respondent for and less value. It would be taking away the purchase of No. 2 brick. This contract a defense of litigants that has never been was not produced at the trial; counsel stat- questioned by the courts. The authorities

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sued for the purchase price of goods, may In Tacoma Coal Co. v. Bradley, 2 Wash. show that the goods were not what he con- 600, 27 Pac. 454, 26 Am. St. Rep. 890, this tracted for.

court said: In Smith v. Pickands, 148 Mich. 558, 112 "It is undoubtedly true that, if the brick were N. W. 122, the court held that the burden defective, and appellant was silent, and did not

give notice or offer to return them within a reaof proof was on the vendee to show that the

sonable time after discovering defects, the right goods delivered were not as specified in the to rescind the sale was thereby waived. But the contract after an acceptance by the pur- right to recover damages on account of defective chaser.

quality was in no wise affected.” In Home Ice Factory v. Howells Mining Again, in Dickinson Fire, etc., Co. v. Ci Co.. 157 Ala. 603, 48 South. 117. there was & Co., 63 Wash. 550, 115 Pac. 1087, we said: a contract by the terms of which the vendor

"If we should concede that there was a breach

of warranty, the rule is that a failure to give contracted to ship the vendee the best qual- |

est qual notice or to offer to return the property within ity of coal, and the vendee sought to es- a reasonable time after discovering the defects cape liability on the purchase price on the operates as a waiver of the right to rescind, and ground that the conl received was of an in- leaves the purchaser only the right to recover

or offset damages to the extent of the diminished ferior grade, and the court there held that value of the article." the quality of the coal was an issue in the In Dayton v. Hooglund, 39 Ohio St. 671, the case, and evidence was taken on that ques-court held that: tion.

"In a suit for the price of a lot of iron manIn Veck v. Marquette Cement Mfg. Co., 158 ufactured by the plaintiff for the defendant, the Wis. 298, 148 N. W. 869, a quantity of cement defendant, in case there is a breach of warranty

| as to the quality of the iron, may recoup for was sold under a written contract which pro

such damages as he has sustained, although he vided that the cement should conform to has used the iron without offering to return it." standard specifications for Portland cement

Other cases adhering to this rule are adopted by the American Society for testing Stark Bros. Nurseries & Orchards Co. v. materials with methods of testing recom- | Mayhew, 160 Mo. App. 60, 141 S. W. 433; mended by the American Society of Engi- | Grisinger v. Hubbard, 21 Idaho, 469, 122 Pac. neers. Evidence was admitted showing that 853. Ann. Cas. 1913E. 87: J. Rosenbaum the cement was inferior by the use of anoth-Grain Co. V. Pond Creek Mill & Elevator Co., er test, and, in answer to the vendor's con- 22 Okl. 555. 98 Pac. 331; Graff y. Osborne, 56 tention that the only way the cement could Kan 162 42 Pac. 704.

Kan. 162, 42 Pac. 704. be shown inferior in quality was by the test

The case of Williams & Co. v. Miller & Co., provided for in the contract, the court said: | 1 Wash. T. 88, cited by respondent, does seem "In the absence of a provision * * * mak

to support its contention that the acceptance ing the test the sole evidence of the inferiority of the cement, the fact might be established by

and use of goods estops the vendee from other evidence."

showing that they were not what he con

tracted for. But from the facts in that case Mette & Kanne Distilling Co. y. Lowrey, 39 Mont. 124, 101 Pac. 966, holds that, in an

it does not appear whether or not there was action by a vendor to recover the purchase

any warranty of the goods sold, or whether

there was any provision in the contract for price of chattels sold under a contract, the

inspection, either of which conditions would burden of proof is on the vendor to show a

change the rule; and, if that case could be delivery of the goods described in the con

construed as supporting respondent's contentract, thus recognizing the rule that the

tion, it has been impliedly overruled by the vendee can show that the goods delivered

Tacoma Coal Co. and Dickinson Cases, supra, were not the goods described in the con

in so far as it attempts to hold that a vendee tract.

is liable for the contract price of goods when [3] Respondent next contends that, be

he has accepted goods inferior to those decause Peterson accepted and used the brick

scribed in the contract. without notifying it, until this action was

The case of Childs Lumber Co. v. Page, 28 instituted, that they were of a quality in

Wash. 128, 68 Pac. 373, holds that, where a ferior to that contracted for, he cannot now

party does not object to materials furnished be heard to say that the bricks were inferior

for the construction of a building, but allows to those described in the contract. In discuss

them to be used in the building, he cannot ing the rules applicable to this contention, it

thereafter refuse to pay for them on the will be well to keep in mind that respondent

ground that they were inferior. But the conis attempting to recover the purchase price

tract in that case provided for an inspection of highway paving brick as provided for in

on the part of the vendee. the contract of purchase; there thus being

[4] There is a well-defined distinction in an express warranty that the brick to be

the rule where an inspection or test is prodelivered would be highway paving brick. Peterson is not seeking to rescind the con

| vided for in the contract, which was noticed

by us in Hurley-Mason Co. v. Stebbins, 79 tract nor to avoid liability for the value of the brick, but is attempting to set off the

Wash. 366, 140 Pac. 381, L. R. A. 1915B, 1131.

In that case we said in part: difference in price between the brick describ

"The authorities cited by the respondent are ed in the contract and the brick he claimed clearly distinguishable from the case here. In Pac. 454, 26 Am. St. Rep. 890, there was involv- , with the judgment of the trial court in denying ed the sale of bricks by the manufacturer for the motions for directed verdict, etc. construction of coke ovens. The sale was not ! [Ed. Note.-For other cases, see Appeal and expressly subject to inspection or test, and the Error, Cent. Dig. 88 3938–3943, 4023, 4024; order for the bricks negatived any implication Dec. Dig. Om 997, 1003.) to that effect. * * * While recognizing the rule, as sustained by the New York and Wiscon Department 1. Appeal from Superior sin authorities, that, in the absence of a war- | Court. Spokane County; H. L. Kennan, ranty and a breach, the vendee's right to recover damages does not survive the acceptance of the

Judge. property after an opportunity to discover de Action by E. M. Skoug against John M. fects, unless notice has been given to the vendor Downs and another. From a judgment for or the vendee returns or offers to return the property, the court points out the fact, which

plaintiff, defendants appeal. Affirmed. we have also noted, that this rule does not apply D. R. Glasgow, of Spokane, for appellants. in cases of express warranty of quality."

Zent, Powell & Redfield, of Spokane, for reSchopp v. Taft, 106 Iowa, 612, 76 N. W. spondent. 843, cited by respondent, sustains this doctrine, and holds that, in the absence of a I PER CURIAM. No question of law is inwarranty, when goods are tendered by the volved in this case. It was tried by a jury. seller in performance of an executory con- There is testimony to sustain the verdict. In tract of sale, and accepted by the buyer after such cases this court will not inquire into an opportunity of inspection, without objec- the preponderance of the evidence, interfere tion, the purchaser is liable for the price with the verdict, or with the judgment of the agreed upon.

trial court in denying motions for directed In Yeiser v. Russell & Co. (Ky.) 83 S. W. verdict, judgment non obstante veredicto, and 574, relied upon by respondent, the court for a new trial. We interfere in jury cases said:

only when it can be said that there are no "There is no better settled principle of law facts which will support the legal conclusion than that, if a vendee accepts goods delivered

that a judgment should be rendered. under a warranty of quality, or retains them after the discovery that they are not the articles

A part of a real estate commission which purchased, and fails to give notice within a respondent claims and which is the foundareasonable time that he declines to receive them, tion of his suit was taken in the form of a because not in conformity with the contract, or exercises ownership over them, he cannot there

promissory note which was discounted by apafter refuse to pay for them.”

| pellants. It is contended that in any event While this case holds that the vendee will

respondent's judgment must be diminished have to pay for the goods, it does not hold

to the extent of the discount. Whether rethat he has to pay the contract price, or that

spondent was bound to lose the discount or he cannot recoup damages for the difference

any part of it was for the jury.

The judgment is affirmed. between the contract price and the price of the goods actually delivered. In fact, in this very case the vendee did file a counterclaim for damages accruing from the failure SUMNER V. GRAYS HARBOR RY. & of the vendor to deliver the goods he con

LIGHT CO. (No. 12913.) tracted to deliver, and a judgment for $40 (Supreme Court of Washington. Jan. 4, 1916.) was entered in favor of the vendee, and the 1. CARRIERS 318-SETTING DOWN PASSENvendor took nothing. The right of a vendee GERS-NEGLIGENCE. when sued for the purchase price of goods

Evidence, in a passenger's action for per

sonal injury while alighting from defendant's to show that the goods received were not as

street car, apart from any negligence of the concontracted for is well established. Tacoma ductor in failing to warn her that the car was Coal Co. v. Bradley, supra, and Dickinson still in motion, held not to show any negligence Fire, etc., Co. v. Crowe & Co., supra.

on the part of the defendant. We conclude, therefore, that it was error

[Ed. Note.-For other cases, see Carriers,

Cent. Dig. 88 1270, 1307-1314; Dec. Dig. Om to exclude evidence of the kind of brick actu- 318.7 ally delivered by the respondent, and for this

2. CARRIERS 303-SETTING DOWN PASSENreason the judgment must be reversed, and GERS--ANNOUNCEMENT OF STREET. the cause remanded for further proceedings A street car conductor's announcement of consistent with this opinion.

a stopping place, is not of itself an invitation to a passenger to alight before the car comes to

a full stop and does not show that the conducFULLERTON, MAIN, and ELLIS, JJ., tor intended or had any reason to believe that concur.

the passenger would alight before the car stopped.

[Ed. Note.-For other cases, see Carriers, SKOUG v. DOWNS et al. (No. 12806.)

Cent. Dig. 88 1216, 1218, 1224, 1226–1232,

1234-1240, 1243; Dec. Dig. 303.) (Supreme Court of Washington. Jan. 6, 1916.) 3. CARRIERS 303–SETTING Down PASSENAPPEAL AND ERROR 997, 1003_REVIEW- GERS-WARNING OF CAR's MOTION. VERDICT-DIRECTION OF VERDICT.

Where a passenger, after the announcement Where there is testimony to sustain the of her stopping place, went to the platform, verdict, the appellate court will not inquire into stood in the doorway, and, after directing the the preponderance of the evidence or interfere conductor's attention to her suit case, which he

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