Croton Chemical Corp. v. Birkenwald, Inc. , 50 Wash. 2d 684 ( 1957 )

Mallery, J.

In 1951, the defendant ordered seventy-five barrels of curing salt for resale by it to meat packers. It specified that the salt should be manufactured for it by the plaintiff and contain eighty-five per cent sodium chloride, twelve per cent sodium nitrate, and three per cent sodium nitrite. The plaintiff filled the order, packed it in fiber drums, and delivered it f. a. s. (free alongside ship) in New York. It was shipped to Seattle via the Panama Canal and arrived in Seattle in December, 1951.

The defendant’s customers began returning orders filled by it because the salt was caked “like cement.” The meat packers need a “free flowing” salt.

Negotiations between the parties to settle the matter came to nothing. Plaintiff then sought a judgment for the purchase price in the amount of $1,518.75. The defendant relies on a breach of implied warranty.

When goods are shipped f. a. s., the consignor is relieved of liability from causes of damage arising after delivery of the goods to the ship dock. Lord v. Edwards, 148 Mass. 476, 20 N. E. 161, Tex-O-Kan Flour Mills Co. v. Nord, 18 So. (2d) (La. App.) 50.

This case presents only this question of fact: What caused the salt to become hard and unusable?

The plaintiff seller produced competent evidence to prove that the moisture, which caused the hygroscopic chemicals to harden, was drawn from the moist tropical air encountered in the Panama route of shipment.

The defendant, on the other hand, produced competent testimony to prove that the moisture content of the materials at the time of manufacture caused the salt to harden and breached the implied warranty of fitness for meat curing.

The court had the right to believe either theory, since both are adequately supported by competent evidence. The court chose to believe the defendant’s theory and entered judgment accordingly. The plaintiff appeals.

RCW 4.44.060, Rem. Rev. Stat., § 368, provides, inter alia:

“. . . The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, . . .”

Since the court’s findings and judgment are supported by the record, we will not overturn them.

The judgment is affirmed.

Hill, C. J., Rosellini, Finley, Weaver, and Foster, JJ., concur.