Skinner v. Griffiths & Sons , 80 Wash. 291 ( 1914 )

Ellis, J.

(concurring)—I concur in the result, but not upon the ground given in the opinion. The confirmatory letter which is set out in the opinion contains the following language:

“For your information we wish to state that No. 1 common grade calls for even thickness of lumber, and you may depend that these boxes will be up to grade . . .”

This was, in my opinion, an express warranty that the boxes would be up to the grade so defined. This warranty would survive acceptance and use of the boxes by the purchaser. An action for damages thereon could be maintained by the purchaser in case he discovered after acceptance or use that the boxes did not conform to the warranty. No inspection prior to acceptance was incumbent upon the purchaser. Hence, under any view of the matter, the title passed upon delivery in the manner and at the place specified in the letter and more particularly specified by the purchaser “alongside of the barge Louisiana.” Had the sale been subject to inspection, a very different question would have been presented, and no title would have passed until a reasonable time for inspection had elapsed, or until a waiver of the right to reject by an acceptance, without inspection. Hurley-Mason Co. v. Stebbins, Walker & Spinning, 79 Wash. 366, 140 Pac. 381; Fairbanks Steam Shovel Co. v. Holt & Jeffery, 79 Wash. 361, 140 Pac. 394. The foregoing are antithetical cases illustrating the two principles. The first is an example of a sale subject to inspection by given tests, upon which the remedy for failure to meet the tests did not survive acceptance. It was waived by failure to inspect or test. The second was a sale with express warranty on which the remedy did survive acceptance, though the defect might have been discovered by physical inspection. In the case here, the sale being on a warranty and not subject to inspection, it seems to me the title passed upon delivery alongside the barge Louisiana.