Hurley-Mason Co. v. Stebbins, Walker & Spinning

Citations

• 79 Wash. 366
• 140 P. 381
• 1914 Wash. LEXIS 1201

Syllabus

<p>Sales — Performance or Breach — Tests—Duty to Make Tests —Contract—Construction. A contractor purchasing' cement from dealers subject to specified' tests, assumed the duty of making the tests, where the cement was to be used in the construction of a depot under a contract obligating the contractor to use no cement which did not meet the tests, which were to be made by a firm approved by the architects, at the mill or at the site, at a cost of five cents per barrel to be paid by the railway company, and the contract of purchase required delivery “f. o. b. cars, St. Paul, Minnesota,” and that all claims of the purchaser upon the seller must be made within five days, the cement never being in the possession of the ’dealers who had no opportunity to make the tests.</p> <p>Same — Tests—Time for Making. No time being specified in the contract of sale for making the tests, the contractor had only a reasonable time after delivery for making the tests, which must be before use.</p> <p>Sales — Subject to Tests — Warranty—Condition Precedent. A provision in a contract for the sale of cement that the same shall be subject to tests to be made by the purchaser is not a warranty of quality collateral to the contract, but is a condition precedent to acceptance, placing the consequence of failure to make the tests upon the purchaser.</p> <p>Sales — Performance or Breach — Conditions—Tests—Waiver of Defects. Upon an executory sale of goods subject to inspection, an acceptance by the buyer, with, or without inspection and without notice to the seller of the defects, is a waiver of any claim for damages on account of defects which might have been discovered upon inspection, in the absence of an express warranty intended to survive acceptance.</p> <p>Sales — Subject to Tests — Implied Warranty — Sale by Dealers. Upon an executory sale of cement by dealers to a contractor, subject to specified tests to be made by the contractor, there is no implied warranty that the cement would be fi