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

HAVEN, J.

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

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price of certain potassium carbonate alleged in the first count of the complaint to have been sold and delivered to defendant, and in the second count to have been bargained and sold to said defendant. The cause was tried upon an, agreed statement of facts. The trial court sustained the defense of a breach by the plaintiff’s assignor of an express warranty that the material sold should be at least ninety-five per cent pure. The essential facts upon which the judgment for defendant was based appear in the following •findings of the trial court, which are supported by the admitted facts and justifiable inferences therefrom:

“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discovering that said goods were not of the quality so warranted, as aforesaid, said defendant rejected said goods, and rescinded said contract of sale, and notified said C. R. Haley of such rejection, and rescission, and said goods were held subject to the order of C. R. Haley, as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.”