Steen v. Southern California Supply Co.

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover damages alleged to have been caused by reason of the sale and delivery by the defendant to the plaintiff of a quantity of caramel coloring matter. The defendant answered and a trial was had before the trial court sitting with a jury. The jury brought in a verdict in favor of the plaintiff on which judgment was entered and from that judgment the defendant has appealed. The appellant makes one point and that is that plaintiff’s recovery may be justified only by reason of an implied or expressed warranty of the caramel color.

Mr. Steen personally made the purchase. He testified that in April or May, 1922, one of the solicitors of the defendant called on him a number of times. He did not remember the name of the solicitor. He stated that Mr. Fish, who was also a solicitor of the defendant, called on him once. Mr. Steen, referring to the solicitor first mentioned, testified that “he spoke about sugar coloring being just as good or perhaps better than any and could furnish it for less money than we were paying, and said, ‘Why not patronize home industry?’ . . . The salesman said that the coloring matter was all right, that it would stand up with any coloring matter as far as quality was concerned, and was as good as anything we had used ...” Some days later Mr. Steen went to the store of the defendant and made a purchase of some caramel coloring. At the time the purchase was actually made it is not claimed that any words were said which constituted a warranty. If an express warranty was made it must be found in the language quoted above.

In 1 Williston on Sales, section 202, it is said: “It is not easy to draw the line accurately between affirmation of fact on the, one hand and statements of opinion on the other. Several distinctions may be noticed. In the first place, it seems obvious that any statement may be put in the form of a statement of opinion. If the seller says a horse is sound, he affirms a fact; but when he states that he believes him to be sound, the only fact which he asserts is his belief,

[267]

and if he does in fact believe the horse to be sound, he could not be held liable if the horse were not sound. Again, there are some matters which, even though asserted positively, are in their nature so dependent on individual opinion that no matter how positive the seller’s assertion, it is not held to create a warranty. Such assertions as that things are fine or valuable, or better than productions of rival makers, are of this sort.”