American Foundry v. Milosevich

SHINN, P. J. American Foundry, a corporation, recovered judgment against Ronald V. Milosevich and Barnislav J. Zarubica, copartners, in the sum of $4,005.75, being the unpaid balance of the purchase price of pipe and other materials sold to the defendants. The answer of defendants consisted of a general denial. They filed a cross-complaint alleging that plaintiff agreed to furnish pipe which would comply with the specifications under a contract between J. E. Haddock, Ltd., and the State of California Department of Public Works, and a subcontract between Haddock and the defendants, under which defendants were constructing certain public works; the pipe furnished by plaintiff did not comply with said specifica[273]tions; after it was installed it was tested and developed numerous leaks which defendants were unable to repair; it was rejected by the state and the Haddock Company, and defendants were required to and did replace the pipe, to their damage in the sum of $6,979.45, for which sum they sought judgment. It was alleged that plaintiff represented that the pipe conformed to the state’s specifications, and warranted that it was suitable for the purposes for which it was intended. Plaintiff answered the cross-complaint, denying that it had any knowledge of the specifications of the state contract, or that it warranted the pipe, and alleging that it furnished the pipe and other materials as ordered by the defendants.

The court found that pursuant to defendants’ request plaintiff submitted the following quotation to defendants:

“March 12, 1951

“R. K. Henze

Milosevich-Zarubica Construction Co.

1433 W. Olympic Blvd. •

Atten. Mr. J. De Rita

‘ Gentlemen: With reference to your conversation with Mr. Meaglia regarding 4", and 8" Soil Pipe. We are pleased to quote you the following on the above material. 1200'—4" S.H. Vie. Soil Pipe—70.62 Per Hundred Feet. 1450'—8" S.H. Vie. Soil Pipe—219.86 Per Hundred Feet

“The above prices are net, trusting this meets with your approval, we remain.

American Foundry

By A. T. Field A. T. Field Sales Mgr.”

and that defendants orally accepted said quotation, ordered said pipe in accordance therewith, that plaintiff delivered the same, and that defendants accepted and used the pipe in said construction work; prior to delivery the pipe was examined and inspected by said defendants “through inspectors of the State of California” and was approved. It was found that defendants ’ order called for 4-inch single Hub Victory soil pipe and 8-inch single Hub Victory soil pipe, the same being descriptive names well known in the trade for pipe intended for use in gravity flow under a pressure not in excess of 35 pounds; that plaintiff was not informed as to where the pipe was to be used, nor that it would be required