Du Val Moore & Co. v. Ward

WARD, J.

Du Val Moore & Co., a corporation, entered into a written agreement with Ivan Ward for the purchase of a quantity of scrap metal referred to as “Babbitt Shimmings ”. The contract was in the form of a communication from the corporation to Ward, who endorsed thereon “Confirmed & accepted. ’ ’ The agreement provides in part as follows : ‘ ‘ Confirming conversation of October 20th, we herewith offer you firm, for acceptance by Saturday noon, October 22nd, $19.25 per ton of 2,000 lbs. for the approximate one hundred to one hundred and twenty-five tons of Southern Pacific Babbitt Shimmings described by you, and of which you have given us an analysis reading as followsThereafter follow analysis No. 1 and analysis No. 2 referring to tin, antimony, copper and lead, and the yield of each analysis. The percentage of each respective metal and the yield in analysis No. 1 differed from the percentage and yield given in analysis No. 2. Analysis No. 1 indicated a less commercial value than No. 2 though the total yield was higher. The

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scrap metal was delivered by the seller to the place designated in the agreement. The corporation paid for the number of tons delivered and immediately resold to parties in an eastern state. Upon arrival at the destination it was found that the shimmings contained a less percentage of metal content which resulted in reducing the market value. Du Val Moore & Co. brought this action against defendant Ward on the contract and alleged damages in the sum of $2,033.27. Judgment was entered for the defendant, and plaintiff appealed.

The question presented on appeal is, did the written agreement create a warranty? The trial court held that it did not and, for the purpose of ascertaining the intention of the parties, permitted testimony of prior conversations to show the circumstances under which certain words and figures were used. In a supplement to appellant’s opening brief, certain findings essential to support the judgment are attacked as without foundation in evidence, but this ground of appeal may be disposed of on the main point presented; namely, under the letter-contract, did the trial court commit error in the reception of evidence of conversations occurring prior to the date of the letter.

Section 1649 of the Civil Code provides: “If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” A mere reading of the contract-letter suggests immediately the questionable purpose of the insertion of two varying analyses. What was the description of the approximate one hundred twenty-five tons of Southern Pacific Babbitt Shimmings “described by you”? Was it the analysis of less commercial value, or the greater ? Was it the analysis of greater or less total yield? Was it the percentage of each respective metal, and if so, was it the first or the second reading that was contracted for? Was it both or neither? Was this an express or implied warranty, or was it just a designation or description of the tonnage of metal of which the analyses were made, without representation as to the correctness of either analysis in metallurgical content ? It is a well known fact that the metallurgical content controls the quality and usability of a quantity of metals, and therefore it must be definite or designated, as calculated or approximated, in order to come within the purview of the statu