Pacific Western Commercial Co. v. Western Wholesale Drug Co.

In this action plaintiff sued as the assignee of one C. R. Haley to recover from defendant the purchase

“That by and in said contract of sale, and as a condition thereof, it was expressly warranted by said C. R. Haley that said potassium carbonate was in quality of ninety-five per cent (95%), or over, pure; that it was agreed and intended by the said parties that such warranty should be, and the same was, a condition to the purchase thereof by the defendant; that by and in said contract, it was further warranted, as a condition thereof, that said five (5) tons of potassium carbonate would be shipped to and ready for delivery by the defendant to its customers during the months of April and May, 1916. That in purported accordance with the terms and conditions of said contract aforesaid, said C. R. Haley, on or about May 5, 1916, shipped to the order of defendant five (5) tons of potassium carbonate. That said five (5) tons of potassium carbonate, so shipped by said C. R. Haley, contrary to and in breach of the warranty of said C. R. Haley, and the condition aforesaid, was not of the quality of ninety-five per cent (95%), or over, pure, but was of a quality of less than ninety-five per cent (95%) pure, being only ninety-three per cent (93%) pure, and no more. That immediately upon discovering that said goods were not of the quality so warranted, as aforesaid, said defendant rejected said goods, and rescinded said contract of sale, and notified said C. R. Haley of such rejection, and rescission, and said goods were held subject to the order of C. R. Haley, as rejected, until said goods were disposed of; that said goods were never accepted by defendant, and said goods were not ninety-five per cent (95%) pure potassium carbonate.”

Appellant admits the breach of warranty as found by the court, but contends that such breach was not a complete defense -to the action, for the reason that respondent elected

The evidence upon which the case was submitted consists of a voluminous correspondence between the parties covering the terms of the contract between them and the positions taken on each side with regard to the breach of the Warranty and the consequences thereof. An attempt to summarize such correspondence would extend this opinion beyond reasonable limits. It is sufficient to state that the following facts were established: After purchase of ¡the goods, and before delivery of a sample or any other portion thereof, defendant contracted to sell the bulk of its purchase to parties in Philadelphia. In its contract of resale, defendant warranted that the chemical sold should not contain over two per cent potassium chloride or over one-tenth per cent of insoluble matter. Under instructions of defendant, the bulk of the material purchased was shipped to its purchasers in Philadelphia, and one hundred pounds to the defendant itself, at Los Angeles. Upon receipt of this last shipment the defendant, promptly notified plaintiff’s 'assignor that it found that the quality of the goods did not correspond with the sample and analysis previously sent. During the next month an extensive correspondence was carried on between the defendant and plaintiff’s assignor with regard to the quality of the chemical shipped,1 it appearing that different analyses made thereon did not agree. During this correspondence plaintiff’s assignor attempted to collect the purchase price upon a draft drawn against defendant. Defendant refused to pay said draft, and the delivery of the goods to its purchaser was held up. Upon defendant’s suggestion, it was subsequently agreed that the chemical should be delivered to its purchasers in

Appellant claims that the warranty by defendant to its purchasers was a different one than made by plaintiff’s assignor to the defendant. It appears, however, that, while the rejection in Philadelphia was based upon an analysis which showed that the insoluble matter and pther foreign contents were so large as to constitute a breach of defendant’s warranty to- its customers upon resale, they were also sufficient to reduce the pure potassium carbonate below ninety-five per cent as warranted by plaintiff’s assignor. Defendant’s final rejection of the goods followed promptly after this test of the material in Philadelphia. Until that time the matter had been held in abeyance by consent of both parties. [1] Taken as a whole, the correspondence proves that defendant gave plaintiff prompt notice of the defect in the material purchased; that the objections made by it were sufficiently definite-to cause plaintiff’s assignor to believe that the basis of objection was the failure to meet the required percentage of purity as covered by his warranty; and that the subsequent acts of defendant did not indicate a waiver by defendant of the breach thereof.

[2] The contention that defendant waived the breach of the warranty by reason of the use of the goods is based upon the admitted fact that it contracted to resell the same to its Philadelphia customers. It is argued that that fact was an exercise of ownership and implied that the buyer had assumed title to the property. It appears, however, that such contract of resale was made prior to any opportunity being afforded to defendant to inspect the goods; that the whole arrangement was contingent upon the fulfillment by plaintiff’s assignor of his warranty of purity to the extent, at least, of enabling defendant to meet its warranty to its customers; and, further, that the proposed re

The offer of defendant to make an equitable and proper adjustment of the misunderstanding between the parties, relied upon by appellant as an additional circumstance proving the election by the defendant, does not appear to have been a consideration for the delivery of the goods, nor to have been relied upon by Haley. Throughout the correspondence, the question in dispute was the purity of the goods. The suggestion of an equitable adjustment was; not made in such a manner as to indicate a waiver by defendant of its right to stand upon the warranty.

[3] The further contention as to the attempted rescission of the contract and the failure to make a tender of. the return of the goods need not be discussed, for the reason that it clearly appears that the sale was never consummated. Hence there was no completed contract to be rescinded. Plaintiff did not deliver the Character of goods which it agreed to sell. Defendant was justified in refusing to accept the goods, and having done so, no further obligation rested upon it. (Mechem on Sales, sec. 1402.) A buyer cannot “be required to accept and pay for a thing different from that which he contracted to receive.” (Mechem’ on Sales, see. 1155.) “If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability; and if this condition be not performed, the purchaser is entitled to reject the: article, or, if he has paid for it, to recover the price as money had and received for his use.” (Benjamin on Sales, sec. 600.) The conclusion of the trial court that the breach of

The judgment is affirmed.

Langdon, P. J., and Brittain, J., concurred.