Berthold v. Seevers Manufacturing Co. , 89 Iowa 506 ( 1893 )

Given, J.

i. sale: delivery ferfor’quauty: vendeeTdaml agres' I. The record shows that the defects in the piling complained of were open, and readily discoverable; also, that the appellant kept and used the piling, knowing of these defects, without notice or complaint to the plaintiff until some four months after, and after a part of the price had been paid. The finding of the court shows that the piling furnished was inferior in dimensions and quality to that agreed to be furnished, and that the defendant sustained substantial damages by reason thereof. The single question submitted on this appeal is whether, under these facts, the defendant is, in law, entitled to recover said damages. The appellant contends that, under the rulings of this court, he is entitled to recover said damages, and cites Davis v. Fish, 1 G. Greene, 406, 407; Crookshank v. Mallory, 2 G. Greene, 257, 258; and Pixler v. Nichols, 8 Iowa, 106. The appellee’s contention is that, the appellant having received and retained the piling, with knowledge of the defects, without notice or complaint to the plaintiff within a reasonable time, he must be held to have waived his claim for damages.

In Davis v. Fish, supra, there was no claim that the defects in the fiatboats, the subject of the controversy, were open and visible, nor'was a waiver pleaded. Crookshank v. Mallory, supra, was for the erection of a building upon real estate belonging to the defendant. The building, though incomplete, became a part of the defendant’s real estate, and could not be rejected or returned. Hence, the defendant was entitled to damages, notwithstanding he had taken possession of the building. The same rule was applied in McClay v. Hedge, 18 Iowa, 66, under a contract to build a barn. For the same reason, it was held in Pixler v. Nichols, supra, that a party who had contracted to labor for a specified time, and who quit before the time, could recover the actual value of the work done, less damages for a breach of the contract. The reason for the rule in these cases is that what had been received could not be returned. We have seen that the appellant retained and used this piling, knowing of its defects, without notice or complaint within a reasonable time, and without offering to return them, as could have been done. It is clear that the rule in the cases cited does not apply to this case, and it is upon those cases that the appellant relies in his opening argument.

2._:_. warranty. II. In reply to the appellees’ argument, the appellant cites the familiar rule as to implied warranties, and contends that the law implies a warranty that the piling was suitable for its intended use; that there being such a warranty, and the piling not being suitable, damages may be recovered without returning the piling. As this claim was not made in the opening argument, and the appellee has not replied to it, it may be. questioned whether the appellant is entitled to have it considered; but, as no objection has been made, we inquire whether, under the law, the appellant is entitled to recover as upon an implied warranty.

The appellant states the rule as follows: uFourthly, when a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied. Fifthly, where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.” The appellant did not trust to the judgment or skill of the appellee as to the quality and dimensions of the piling to be furnished. Their quality and dimensions were fixed by the contract. Had the appellant ordered piling suitable for the construction of a particular bridge, or a bridge of specified dimensions, leaving the appellee to determine what would be suitable, the rule cited would apply. In this case the quality and dimensions of the piling are not left to implication, but are fixed by the contract. “When goods are delivered on an existing contract, requiring a particular quality, the absence or presence of which can be seen on mere view, in such cases the purchase is without warranty, or the acceptance without objection, leaves the seller relieved of all responsibility for the goodness, quality, or fitness of the property.” 2 Sutherland on Damages, 1489. See, also, Allison v. Vaughan, 40 Iowa, 421, 424; Hirshhorn v. Stewart, 49 Iowa, 418; Winelander v. Jones, 77 Iowa, 401.

Our conclusion is that, under the law and the facts, the appellant is not entitled to recover on the counterclaim. The .judgment of the district court is, therefore, aeeirmeir