W. R. Grace & Co. v. Levy

THE COURT.

This is an action for damages for the breach of an express warranty which accompanied the sale of a certain quantity of coffee bags to the plaintiff by the defendant. The complaint pleaded four causes of action in separate counts, each of which was identical in language save and except as to the dates and the amounts involved. The defendant answering denied all of the material allegations of the complaint save and except the allegation concerning the execution of the - contract and the giving of the warranty.

On the issues thus framed the cause was tried by the court without a jury, and judgment rendered and entered in favor of the plaintiff in the sum of one thousand two hundred dollars upon the issues involved in the first three counts. Upon the issues involved in the fourth count the court found that the plaintiff had an opportunity to inspect and did inspect the bags contracted for prior to delivery, and approved the

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same, and that therefore the plaintiff was not entitled as a matter of law to recover on that particular count, and rendered judgment thereon in favor of the defendant.

Upon the issues involved in the first count, the trial court found, in substantial accord with the allegations of the complaint, that on October 3, 1911, the defendant at the city and county of San Francisco, sold to the plaintiff ten thousand second-hand gunny bags, and that at the time of such sale, and as a part of the transaction, the defendant warranted said bags to be in good, sound condition and of the size of about twenty-eight by forty inches; that the defendant agreed to pack said bags in bales; that he knew they were to be shipped to and used in the vicinity of San J ose de Guatemala ; that the bags were delivered to the plaintiff at San Francisco, the place agreed upon for delivery; that at the request of the plaintiff the bags as baled were marked “ J. G. Y. No. - San Jose de Gnat.,” and were delivered so marked to a drayman for the plaintiff; that the bags when thus delivered were not in good, sound condition or of the size of about twenty-eight by forty inches; that it had not been practicable for the plaintiff to inspect the bags after delivery at San Francisco, or prior to their shipment to the port of destination, or until their arrival at said port; that the plaintiff could not, with the exercise of the diligence usual and ordinary in such a transaction, have inspected said bags until their arrival at the port of destination; that the bags while being baled in San Francisco were not inspected or approved by the plaintiff or declared by it to meet the requirements of the warranty; that after shipment of the bags and before their receipt at the port of destination the plaintiff, relying on the contract and warranty in suit, paid to defendant the agreed price; that the bags reached the port of destination on November 30, 1911, and were received by the plaintiff; that if the quality and condition of the bags had measured up to the requirements of the warranty, they would have had a value of one thousand dollars; that by reason of the defendant’s breach of the warranty the actual value of the bags at the time of their receipt by the plaintiff at the port of destination was only five hundred dollars; and finally, that the detriment suffered by the plaintiff from the breach of the warranty was the sum of five hundred dollars.