Barrios v. Pacific States Trading Co.

This is an appeal from a judgment in the plaintiff’s favor in an action brought by him as the assignee of Lewis-Simas-Jones Co., a copartnership, to recover from certain stockholders of the Pacific Trading Company, a corporation, their proportionate share of the liability of said last-named corporation arising out of its alleged breach of warranty. The transaction out of which the cause of action arose was one in which the Lewis-SimasJones Company gave its written order to the Pacific States Trading Company for .a certain quantity of “Export-cured boneless codfish” and for a certain further quantity of “Export-cured whole codfish,” to be packed by the latter corporation in or near San Francisco, for shipment by the copartnership, the plaintiff’s assignor, to Valparaiso, Chile, which order being accepted, the fish, in due course, were packed and delivered in hermetically sealed tins, cased for foreign shipment, to the steamship company at San Francisco consigned to said foreign port. Arriving there in December, 1915, they were on examination found to be spoiled and unfit for human consumption, and were destroyed by the public authorities. Thereafter the plaintiff, as assignee, commenced this action and recovered judgment against the several appellants herein upon their proportionate liability as stockholders of the said defendant corporation.

The appellants urge several points against the judgment. The first of these is that there was no warranty as to the quality of the fish sold embraced in the written order and its acceptance out of which the cause of action arose. [1] It is true that the word “warrant” is not to be found in the language of the written order or of its acceptance, but we do not think that this is necessary to the creation or existence of an express warranty of goods sold where the terms of the agreement designate the particular quality of the article to be delivered in phrases which are well known to the trade in respect to the particular article purchased

[3] The next contention of the appellants is that conceding that the terms of the written order and of its acceptance amounted to a warranty that the goods packed and delivered thereunder would be “export-cured codfish,” there is no evidence of the breach of.such warranty. But in this respect, also, we cannot concur in the appellant’s contention. The evidence showed that there were two qualities of cured .codfish known to this particular trade. One was “domestic cured codfish,” intended for use in domestic trade. In packing this quality of codfish it was not required that all moisture should be dried out of the fish before being packed in tins; but as to the other quality defined as export-cured codfish it was essential that all moisture should be extracted by the drying process in order that the sealed product might be able to withstand the extremes of climate incident to its shipment to foreign and, as in this instance, tropical lands. Upon the trial of the cause the plaintiff Barrios, who was one of the members of the copartnership and- an experienced exporter, testified to having been present when a considerable number of the cases containing the hermetically sealed cans of the shipment in question were opened at Valparaiso, and when it was found that every can to the number of eighty or a hundred selected at random from the general lot contained a quantity of foul liquid, the codfish therein being entirely decomposed. The witness further testified that the codfish thus found to be in that condition was not “export-dried codfish.” We think this testimony, if believed by the court, would suffice to sustain its finding in- that regard.

[5] The next contention of the appellants is that conceding the warranty upon which this action is predicated to have been embraced in the terms of the writings, it was a warranty subject to an express condition which was contained in the words stamped upon each package of codfish,'

The final contention of the appellants is that the plaintiff should have reduced his damages by a sale of the codfish in question at San Francisco prior to their shipment to their ultimate destination. This contention is based upon the claim of the defendants that the fact that the goods were not “export-cured” was known to one of the buyers’ authorized agents before the goods were fully packed. We do not think that the evidence sustains this contention, for while it is true that one of the buyer’s agents visited the drying and packing grounds of the packer while the goods were being canned, and there expressed his doubts as to whether they were sufficiently dry for export shipment, the evidence also shows that he was assured by the more experienced representative of the packer that they were sufficiently dried to withstand a trip to South America. [6] The buyer was entitled to rely upon the assurances of the packer that the goods shipped would be of the quality warranted by the terms of their written agreement with it, and the mere fact that an agent of the purchaser saw such goods in process of preparation and expressed a doubt as to their being sufficiently dried cannot be held to either constitute a waiver of such warranty or to have required a further inspection of the goods after they had been sealed and packed and delivered on shipboard at San

The judgment is affirmed.

Waste, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the. supreme court on August 14, 1919.

All the Justices concurred, except Wilbur, J., who was absent.