Polhemus v. Heiman

California Supreme Court Jul 1, 1873 No. No. 3,444Published

Before: Belcher

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Holding. The court held that the trial court erred in instructing the jury that the contract contained no warranty, as the contract's descriptive language regarding the wool's quality constituted an express warranty. Consequently, the defendants were entitled to retain the goods and seek damages for a breach of warranty rather than being required to return the goods to preserve their claim.

Issues

Whether the contract's descriptive language regarding the quality of the wool constituted an express warranty.
Whether a buyer who accepts goods under an executory contract is required to return them to claim damages for a breach of warranty.
Whether the rendering of an account by the defendants precluded them from asserting a breach of warranty.

Disposition. reversed

Quotations verified verbatim against the opinion

“Any affirmation made at the time of sale as to the quality or condition of the thing sold will be treated as a warranty if it was so intended.”

“Having a warranty, the defendants were not required to return or offer to return the wool.”

“If it was not what it was warranted to be they might have done so, and thus have rescinded the contract, but they were at liberty to retain it and bring an action for the breach of the warranty”

Synopsis

Latitude Allowed in Contract.—A contract to deliver about fifty-three thousand pounds of wool does not require the delivery of that exact number of pounds, but the vendor has a reasonable latitude allowed him as to the number of pounds he shall deliver.

Delivery of Goods by Vendor.—If the vendor delivers a less quantity of goods than he contracted to deliver, the vendee is at liberty to refuse to accept, and if he accepts a part, he may return that and refuse to accept less than the whole, but having received and retained a part, he cannot refuse to pay for the part received.

Warranty of Goods Sold.—No particular words are necessary to constitute a warranty as to the character, condition, or quality of goods sold, but if the vendor, at the time of sale, affirms a fact as to the essential qualities of his goods, and the purchaser buys on the faith of such affirmation, it is an express warranty.

Warranty in Executory Contract.—There may be an express or implied warranty when the contract for the sale of goods is executory, as well as when it is executed.

Damages for Breach of Warranty.—If the vendee accepts the goods sold when delivered by the vendor, and renders the vendor an account, it does not prevent the vendee from recovering damages for a breach of a warranty made by the vendor as to their quality, if the vendee thus accepted and rendered the account in ignorance of the true condition of the goods.

Remedy of Vendee for Breach of Warranty.—If the vendor warrants the goods sold, and the vendee discovers after they are delivered that there has been a breach of the warranty, he is not compelled to return the goods, although he may do so and rescind the contract, but he is at liberty to retain them and bring an action for the breach of the warranty, or he may plead the breach in reduction of damages in an action brought by the vendor for the purchase money.

By the Court, Belcher, J.: The plaintiff entered into a written contract with the defendants, at the County of Los Angeles, .in March, 1871, by which the plaintiff bound himself to deliver to the defendants, “in good order, in new sacks, and the fleeces tied, the following lots of wool, viz: one lot of about twenty-four thousand pounds, of six to seven months’ growth; and one lot of about twenty-nine thousand pounds, of twelve months’ growth—both to be as free of burs as any in this section of the county; the first to be delivered on or before the 20th of April, 1871; the latter on or before the 1st day of May, 1871.”

And the defendants bound themselves to receive the wool either at San Biego City wharf, Anaheim Landing, or Wilmington, and to pay for it at the rate of nineteen and one half cents per pound.

Before any of the wool was received the defendants resold it to hi. & H. Jacoby, with like representations as to the condition in which it should be received.

In pursuance of the contract the plaintiff delivered to the defendants, in the months of March, April, and May, 1871, forty-seven thousand three hundred and fifteen pounds of wool, which, without examination, was shipped to the Jacobys, at San Francisco.

After the wool was received in San Francisco it was examined, and a portion of it found to be very burry and dirty. The Jacobys claimed damages from the defendants on account of the bad condition of the wool, and received from them on a compromise nine hundred and thirty-two dollars and eighty-four cents on that account.

After the wool was all received by the defendants, but before it was examined in San Francisco, the defendants rendered to the plaintiff a statement, showing the quantity [576]received, and the dates of its delivery, and the balance due therefor at the price named in the contract.

The plaintiff brings this action to recover the balance of the purchase money, and the defendants, denying any indebtedness, claim judgment against the plaintiff by reason of an alleged breach of the express warranty contained in the contract.

The breach consisted in the failure to deliver the number of pounds stipulated for, and in delivering the forty-one thousand nine hundred and twenty-eight pounds in bad order, and in an unmerchantable condition, and not as free from burs as any in the section of the county where the contract was made.

Polhemus v. Heiman

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