Carver-Shadbolt Co. v. Loch

Mount, J.

This action was brought to recover upon a promissory note for $££7.50, executed by the respondents on May £9, 191£, and due on October 1 of the same year. The defendants answered, admitting the execution and delivery of the note, and as an affirmative defense, alleged a failure of consideration, for the reason that the note was given in part payment of a hay stacker which was warranted to stack hay at fifty cents to a dollar per ton cheaper than an old style “T” stacker; that by reason of the failure of the warranty and an offer to return the stacker, there was nothing due on the note.

The main question in the case is whether there was a warranty. The appellant argues that there was not sufficient evidence of a warranty to be submitted to the jury, and that the court should, therefore, have directed a verdict in favor of the plaintiff. It is conceded that, on the date the note was given, the plaintiff sold to the defendants a Jenkins mammoth automatic hay stacker and three Buck rakes, for the sum of $£97.50; that, as a part payment of the purchase price of this hay stacker, the plaintiff agreed to, and did, take what is known as a “T” stacker, for which the defendants were allowed a credit of $70. The note sued upon was given, as the balance of the purchase price.

In his defense Mr. Loch testified as follows:

“In April, 191£, Mr. Kline came to my place selling Jenkins automatic stackers and Buck rakes. He had a list of figures showing the price of two different ways of stacking hay, with the Jenkins stacker and with the old “T” stacker. He said the Jenkins stacker would stack hay from fifty cents to $1 a ton cheaper than my old way. ... I told Mr. Kline it was too early in the season to begin to talk about stacking hay. I would see him later on, and in about three weeks he came back and wanted to know what I thought about the Jenkins stacker. I hadn’t thought much more about it and he offered to take my old stacker in for $70; and later on I saw Mr. Carver, president of the company, at Wapato, and told him I would trade that way. I knew noth*455ing about the Jenkins stacker except what he told me, and it was upon his recommendation that I purchased it.”

Later, upon cross-examination, he testified as follows:

“Mr. Kline said the Jenkins stacker would stack hay from fifty cents to $1 a ton cheaper than the “T” stacker. Q. That is the exact language, as near as you can remember it, is it? A. Well, somewheres near that.”

It is argued by the appellant that, conceding the testimony of the respondent Mr. Loch to be true, the statements therein made do not constitute a warranty, and that it was the duty of the court to so instruct the jury, and to direct a verdict in favor of the plaintiff for the amount due upon the note. We think this contention must be sustained. The rule seems to be that:

“Representations which merely express the vendor’s opinion, belief, judgment, or estimate do not constitute a warranty. Nor can a, warranty be predicated on statements which are at most, merely matters of commendation, such representations falling within the maxim simplex commendatio non obligad. There must be an affirmation as to the quality or condition of the thing sold, not asserted as a matter of opinion or belief, made by the seller at the time of the sale, for the purpose of assuring the buyer of the truth of the fact affirmed and inducing him to make the purchase, which is so received and relied on by the purchaser. No expression of opinion, however strong, would import a warranty.” 35 Cyc. 383.

In the case of Smith v. Bolster, 70 Wash. 1, 125 Pac. 1022, where Smith had sold a second-hand automobile to Bolster, with the statement that the car was “in first-class condition, as good as any new car,” and that he “guaranteed the car to go eleven miles to a gallon of gasoline on an average,” we held that these statements did not constitute a warranty, but were mere expressions of opinion, or what the law sometimes terms seller’s praise. Under the rule in that case, it seems plain that the statement, to the effect that the stacker in this case would stack hay at from fifty cents to a dollar *456a ton cheaper than the old way, cannot be held to be a warranty. It was, therefore, the duty of the trial court to have taken the case from the jury and direct a verdict in favor of the plaintiff.

The judgment appealed from is therefore reversed, and the cause remanded with direction to the trial court .to enter a judgment in favor of the appellant for $221.50 and interest, and a reasonable attorney’s fee, as provided for in the note.

Morris, C. J., and Holcomb, J., concur.