Free v. Sluss

87 Cal.App.2d Supp. 933 (1948) CHARLES A. FREE et al., Appellants,

v.

I. B. SLUSS et al., Respondents.

California Court of Appeals.

Sept. 3, 1948. Glen H. Munkelt for Appellants.

Harden & Condra and Rollinson & Priess for Respondents.

BURCH, J.

The plaintiffs operate a retail grocery in Coronado. The defendant corporation is the manufacturer of soap. The individual defendants are a partnership wholesale broker and dealers in soap. The litigation grows out of a transaction which occurred in the fall of 1946 when soap was scarce and hard to obtain for the existing market. The uncontradicted testimony of one of the plaintiffs, Charles A. Free, establishes that Mr. James, one of the defendant dealers, brought to plaintiffs' grocery store, for the purposes of effecting a sale, a package of Frederick's Margarita Soap, which was a new product to plaintiffs. Mr. James represented that he had the answer to plaintiffs' want; that he had a good [87 Cal.App.2d Supp. 935] product in a good looking package; that the soap was likely to stay upon the market; and he exhibited to plaintiffs at that time a guarantee of quality printed on the back of the package, and told plaintiffs that if they had any trouble to go ahead and refund the customer's purchase price and that the guarantee would take care of the plaintiffs. The plaintiffs purchased 25 cases. The witness testified "this Frederick's soap looked so good we took a chance on 25 cases." He was asked if he had made any public demonstration of that soap. His answer was, "We did. I got my wife's washing machine, and we put it right next to our checking stand, and we put a small amount of this soap in the washing machine, and it wasn't bad." Question: "Did you have any second dealing with Mr. James about the Frederick's Margarita soap?" Answer: "Yes. Mr. James came back to us. It was not too long after this first 25 cases of soap, and asked us how we had done, and we told him we had done fair on it, and asked us if we would like another shipment of the same soap. We told him that we would, and he said 'Well, I think we can get you 100 cases. A lot of smaller markets can't handle as much as we thought they were going to handle, so you sold all of this, so we can give you this 100 cases' and I took it. We received the shipment just a few days after that and paid for it."

On further substantial evidence the court found that the 100 cases of soap purchased were unfit for the purposes for which they were sold and were unmerchantable. It also appears in the record without contradiction that the plaintiffs offered to return the goods to both the dealers and to the manufacturers.