Covers cases on the implied warranty of fitness—partial reliance

Colgrave, John F.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 35 Number 2 Washington Case Law—1959 7-1-1960 Sales John F. Colgrave Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Commercial Law Commons Recommended Citation John F. Colgrave, Washington Case Law, Sales, 35 Wash. L. Rev. & St. B.J. 228 (1960). Available at: https://digitalcommons.law.uw.edu/wlr/vol35/iss2/11 This Washington Case Law is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWSALESImplied Warranty of Fitness-Partial Reliance. In Fossum v.Timber Structures, Inc.,' the Washington court adopted the rule that"an implied warranty of fitness may exist even though the buyer'sreliance on the seller's skill and judgment is not a total reliance, andthe buyer has relied on his own judgment as to some matters and onthe seller as to other matters."2It is necessary to look closely at the facts of the Fossum case to seeexactly what the present effect of this rule is on Washington law. In1955, respondents, fruit growers in the Yakima valley, decided toconstruct a fruit warehouse, the roof of which was to be supportedby "bow string" trusses. The respondents selected a general designerto prepare plans for all parts of the building except the roof trusses.In February of 1955, one of the respondents contacted a sales repre-sentative of appellant, explained to him the nature of the building, andrequested a price quotation for trusses which would meet their needs,particularly in that they would be capable of withstanding any snowload which could be expected in the Yakima area. At that time therepresentative estimated that the trusses should be designed to holda "dead load" of seventeen pounds and a "live load" of twenty-fivepounds. Subsequently, a sales order was prepared in which the loadswere specified, the "dead load" figure being fifteen pounds. Afterrespondents signed the order, appellant supplied plans for the trusseswhich specified a "dead load" of only ten pounds. Respondents thenpresented the plans to their general designer who, upon making certaincorrections as to length and other suggestions, returned them to appel-lant. Upon receiving a sales change order which specified a "deadload" of ten pounds, respondents returned it to appellant, indicatingtheir approval of the truss plans as corrected.3 The "live load" re-mained fixed at twenty-five pounds throughout the negotiations. Ap-pellant proceeded to build and erect in place the roof trusses accordingto the plans.In January, 1956, several months after completion of the warehouse,the roof collapsed following a heavy snow fall. Respondents broughtsuit alleging, as one theory of recovery, breach of an implied warranty1154 Wash. Dec. 395, 341 P.2d 157 (1959).2 Id. at 413.3 Actually, this reduction in "dead load" should not have played a role in the col-lapse of the roof, for "dead load" is the permanent load or weight of the roof andanything suspended therefrom. The snow load would be considered "live load," whichconsists of any weight temporarily added to the roof.[VOL. 35WASHINGTON CASE LAW-1959of fitness for a particular purpose. The defendant appealed the un-favorable jury verdict, contending, among other things, that the trialcourt should have found, as a matter of law, respondents, by submit-ting the plans with the specified load factors to their designer forapproval, did not rely on appellant's skill or judgment in making thepurchase.In reaching its decision on this issue, the court first said: "From theevidence, the jury could have believed that, in showing the truss plansto Sanford [respondent's general designer], respondents were merelyassuring themselves that the trusses would fit in with the over-allconstruction of the warehouse."' The court then announced the partialversus total reliance rule set forth above and cited one Iowa case' asauthority. Perhaps no severe criticism should be leveled at the sum-mary adoption of this rule, since it overrules no prior Washington law.It is new law, however, at least to the extent it means that where apurchaser has his own expert inspect the specifications for the goodsto be purchased, it is still possible for a jury to find that the purchaserrelied on the seller's judgment that the goods would be suitable for thebuyer's particular purpose. Viewed in the light of the facts of theFossum case, the rule is not startling. For the roof trusses in question tohave been reasonably suitable for the purpose described to appellant, itwould have been necessary for them to fit, physically, the rest of thebuilding. Secondly, the trusses must have been capable of supportingthe roof when covered with snow. It is entirely reasonable that reli-ance by the purchaser on the skill or judgment of the appeallant as tothe existence of either of these characteristics should give rise to animplied warranty of suitability, for the absence of either would meanthat the trusses were in fact not suitable.If the rule is applied only to cases which fit the fact pattern of theFossumn case, total reliance on the seller's skill or judgment as to theexistence of at least one of the necessary qualities is still a prerequisiteto the implied warranty. The wording of the rule itself indicates thatit will be so limited. Such limitation would mean that the rule will notbe extremely difficult for a jury to apply. It also would not introducea factor which would make prediction of outcome entirely impossiblefor the attorney. However, the fact patterns of the Iowa case citedby the court and of other cases in which courts have stated the rulein exactly the same words, were such as to indicate that courts have4 154 Wash. Dec. 395, 413, 341 P.2d 157, 168 (1959).5Drager v. Carlson Hybrid Corn Co., 244 Iowa 78, 56 N.W.2d 18 (1952).1960]WASHINGTON LAW REVILWapplied the rule where the reliance as to the existence of a singlequality was divided. At least the facts of those cases as reported donot show that the desired qualities were susceptible of being brokendown into several separate qualities with separate reliance on eachquality, as are those of the Fossum case. 6 If this is the case, it is tobe hoped that the Washington court has recognized and will maintainthe distinction. If the rule is extended to the second type of factsituation, the finder of fact is faced with the very difficult decision asto when the reliance of the buyer on the skill or judgment of the sellersufficiently outweighs the buyer's reliance on his own judgment to giverise to the implied warranty.6 The rule seems to have originated in Kurriss v. Conrad & Co., 312 Mass. 670, 46N.E2d 12 (1942). The Massachusetts court discussed Flynn v. Bedell Co., 242 Mass.450, 136 N.E. 252 (1922), a case in which the buyer had participated to some extentin selecting a coat with a fur collar. Since the court had said that there was sufficientevidence to warrant a jury finding that the buyer relied on the seller's skill and judg-ment that the fur was natural rather than dyed, the court in the Kurriss case concludedthe earlier court meant that reliance under the Uniform Sales Act need not be totalreliance and that the buyer may rely on his own judgment as to some matters and onthe skill or judgment of the seller as to others. The Flynn case had the same type offact pattern as the Fossum case in that the qualities on which there was a differentsource of reliance were easily separated. In the Kurriss case itself, the buyer purchaseda dress selected by the seller. The reliance was not total in that the buyer tried thethe dress on and, therefore, to some extent, participated in the selection. However,trying the dress on only indicated reliance on the buyer's own judgment as to matterspertaining to the fit of the dress and not as to whether the dress was unsafe for anyreason. The court allowed a recovery for skin irritation caused by some latent defectin the dress.In Drager v. Carlson Hybrid Corn Co., supra note 5, the purchaser bought hybridseed corn from the seller. The Iowa court said that the trial court granted a directedverdict for the seller on the bases of lack of proof as to (1) the measure of damagesand (2) reliance by the buyer on the seller's skill or judgment. The appellant hadbought such seed corn from the same seller for several years and, therefore, to someextent, relied on his own judgment that corn purchased from the seller would be suit-able. Also, the sales contract reserved to the buyer the right to reject any or all of thecrop if it did not qualify, further indicating that the buyer was relying on his ownjudgment. Without specifying as to what matters the buyer relied on his own judg-ment and as to what matters he relied on the skill or judgment of the seller, the Iowaappellate court, in reversing the lower court, applied the same partial versus totalreliance rule stated by the Washington court in the Fossum case.In Rasmus v. A. 0. Smith Corp., 158 F. Supp. 70 (W.D. Iowa 1958), the federalcourt quoted the rule from the Drager case. The buyer had purchased a corn storagebin after making known to the seller the exact purposes for which he wished to use it.However, he had, prior to the purchase, visited a neighboring farm where such a binwas installed, in an attempt to ascertain whether the product was what he wanted. Thecourt applied the partial reliance rule and allowed recovery for breach of warrantyeven though the buyer had partially relied on his own judgment on the very matterswhich the court found gave rise to the implied warranty.Himmelstein v. Budner, 93 F. Supp. 946 (D.C. D.C. 1950), was another case inwhich the matters for which the buyer relied on his own judgment were clearly distin-guishable from those for which the seller's skill or judgment were relied on. This casewas cited for the partial reliance rule in Hagedorn v. Taggart, 114 A.2d 430 (Munic.Ct. of Appeals D.C. 1955). There, a lady who had worn hearing aids for several yearspurchased a new one, partially relying on her own experience and judgment andpartially relying on the skill and judgment of the seller. Once again the rule wasapplied to the fact situation in which it is difficult to see a separation of reliancecorresponding to a separation of necessary characteristics of the merchandise.[VOL. 35WASHINGTON CASE LAW-1959Another contention of appellant was that the specification of loadfactors in the plans constituted an express warranty that the trusseswould withstand the specified loads, that such warranty would beinconsistent with an implied warranty that the trusses would with-stand any greater load, and that therefore, under RCW 63.04.160 (6),'the latter warranty did not arise. In answering this argument, theWashington court quite correctly pointed out that such an expresswarranty was not inconsistent with an implied warranty that suchload factors would produce trusses suitable for respondent's purpose,that is, trusses capable of withstanding any snow load which could beexpected in the Yakima area. As authority for this proposition thecourt cited Long v. The Five-Hundred Co.8 However, that case wasnot one in which a purchase order containing the specifications for themerchandise was signed by the purchaser. The facts of the Fossumcase are more nearly like those of United States Cast Iron Pipe &Foundry Co. v. Ellis," which was discussed and distinguished in theLong case. The sales contract in the Long case specified a particularDay-Elder auto truck. The contract signed by the parties in the Elliscase specified the type and size of cast iron pipe being purchased. Inboth cases the seller had been informed of the buyer's particular usefor the goods being purchased. An implied warranty was held to arisein the former case but not in the latter. The cases may be distinguishedby looking at the negotiations leading to the contract in each case. Inthe Long case the seller, upon hearing of the buyer's need, presentedthe particular truck and represented that it was suitable for the buyer'spurpose. In the Ellis case the buyer himself had attached to the orderthe contract under which he was working, which contained detailedspecifications as to the type of pipe to be used. Although the facts ofthe Fossum case seem to coincide more nearly with those of the Elliscase than with those of the Long case, the distinction made above, asto which party furnished the description or specifications, when ap-plied to the facts of the Fossum case, clearly places the Fossum casein the Long case category. Actually, the rules stated in the Ellis caseclearly require the decision reached in both the Long and Fossumcases. 10 In this respect the Fossum case does not alter any existing7"An express warranty or condition does not negative a warranty or conditionimplied under this chapter unless inconsistent therewith."8 123 Wash. 347, 212 Pac. 559 (1923).9 117 Wash. 601, 201 Pac. 900 (1921).10 "[I]t is perhaps the general rule, that where a buyer orders a specific article froma dealer or manufacturer, stating the purpose for which the article is intended to be1960]WASHINGTON LAW REVIEWlaw but does indicate the extent to which the Ellis rules will be applied.It is to be hoped that any future Washington decisions in this areawill contain an analysis in terms of these rules.JOHN F. COLGROVESECURITY TRANSACTIONSSecurity Transactions - Purchase-money Mortgages, Mechanic'sLien - Priorities. On occasion, a real estate contract vendee will havea mechanic or materialman perform work or furnish materials prior tothe vendee's receiving record title in the property. The vendee mayalso grant a purchase-money mortgage on the same property. Thepurpose of this Casenote is to consider the priorities between the pur-chase-money mortgage and the mechanic's or material-man's lien inWashington. The matter has again been raised in the recent decisionof Nelson v. Bailey.'The mechanic's lien attaches, at the time the work is performed, tothe interest in the land of the person who caused the work to be done.2If the person for whom work is performed has less than the fee, thelien will not ordinarily attach to the fee. For example, in the case of amechanic or materialman who performs services for a lessee who isauthorized by the terms of the lease to build, the lien attaches onlyto the lessee's interest and does not attach to the lessor's fee.3 TheWashington court in the lease case rejected an argument that thelessee was the agent of the lessor.' In the case of Newell v. Vervaeke'used, and trusts to the judgment of the seller the selection of the article which shall besuitable for the intended purpose, there is an implied warranty that the article furnishedshall be reasonably fit for the intended purpose. . . .But the converse of the proposi-tion is equally the rule, namely, that when the article ordered is to be manufacturedaccording to certain prescribed specifications, or is an article well known and definedin current trade, the contract is complied with when an article is furnished which ismanufactured in accordance with the designated specifications, or is an article of thestandard kind known to the trade, even though the seller may know the purposes forwhich it is intended to be used and it afterwards proves to be unfit or unsitable for theintended purpose." Id. at 605-06.1154 Wash. Dec. 153, 333 P.2d 757 (1959).2 RCW 60.04.030.3 Stetson-Post Mill Co. v. Brown, 21 Wash. 619, 59 Pac. 507 (1899) ; Colby & Dick-inson, Inc. v. Baker, 145 Wash. 584, 261 Pac. 161 (1927).4 See note 3, supra; however, in Seattle Lighting Fixture Co. v. Broadway Cent.Market, 156 Wash. 189, 286 Pac. 43 (1930), the court held that a mechanic's lien didattach to the fee of the lessor in a lease which by its terms required the lessee to build.5 189 Wash. 144, 63 P.2d 488 (1937). See also, Baker v. Sinclaire, 22 Wash. 462,61 Pac. 170 (1900). A recorded conditional sale contract with forfeiture clause willprevent the lien from attaching to the fee, Mentzer v. Peters, 64 Wash. 540, 33 Pac.1078 (1893) ; Iliff v. Forssell, 7 Wash. 225, 34 Pac. 928 (1893), even if the conditionalsale contract requires that work be performed, Northwest Bridge Co. v. Tacoma Ship-building Co., 36 Wash. 333, 78 Pac. 996 (1904).[VOL. 35

Sales

https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3357&amp;context=wlr

Sales

Abstract

Similar works

Full text

Available Versions

UW Law Digital Commons (University of Washington)