Correio v. Lynch

Sharpstein, J.

The action being for the price and value of wood, defendant, under the general denial, might have shown that the wood was not of the value alleged in the complaint. He aimed, however, at something beyond that, and attempted to establish a case which would entitle him to “ a fair compensation for the loss incurred by an effort in good faith to use it,” for the purpose of burning bricks in a kiln, on the ground that plaintiff warranted the fitness of said wood for that particular purpose. (Civ. Code, § 3314.) There is no allegation in the counter-claim of an express warranty to that effect. And it is only where an article is manufactured “wider an order for a particular purpose,” that the manufacturer, “ by the sale, warrants that it is reasonably fit for that purpose.” (Civ. Code, §§ 1764, 1770.)

Fire wood is not, in our opinion, a manufactured article, within the meaning of the Code.- Ho more so than grain or wool. Therefore the defendant could not recover compensation for the loss which he incurred by his efforts to use said wood for the purpose of burning bricks. And he cannot complain of the rulings of the court by which evidence tending to prove the loss incurred by such efforts was excluded.

The evidence of the defendant is that the plaintiff commenced delivering the wood at defendant’s brick yard three or four months before there was any occasion for using it, and if it was not of the quality which plaintiff had agreed to deliver, it was optional with defendant to refuse to accept it, or to accept and use it; and in the latter event pay only its real value. It is not the case of one selling merchandise inaccessible to the examination of the buyer. (Civ. Code, § 1771.) Here the wood was delivered on defendant’s premises, and accessible to his examination before he used it, or paid for it. In fact, it is not claimed that he has ever paid anything for it. Under such circumstances he cannot avoid the payment of its real value.

It is stated in the bill of exceptions that the “plaintiff introduced evidence in support of the allegations in his complaint, and the defendant introduced evidence denying the same.” The exceptions to the rulings of the court on the defendant’s attempts to introduce evidence in support of that part of the answer denominated a counter-claim, and the refusal of the court to give instructions based on the theory that the defendant was entitled to compensation for such loss as he might have suffered by his efforts in good faith to use said wood for the purpose of burning bricks, are the only ones which we have to consider. We think none of them are well taken.

Judgment and order affirmed.

Thornton, J., and Myrick, J., concurred.