Cervitor Kitchens, Inc. v. Chapman

500 P.2d 783, 7 Wash. App. 520, 11 U.C.C. Rep. Serv. (West) 534, 1972 Wash. App. LEXIS 1005
CourtCourt of Appeals of Washington
DecidedSeptember 5, 1972
Docket682-1
StatusPublished
Cited by6 cases

This text of 500 P.2d 783 (Cervitor Kitchens, Inc. v. Chapman) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cervitor Kitchens, Inc. v. Chapman, 500 P.2d 783, 7 Wash. App. 520, 11 U.C.C. Rep. Serv. (West) 534, 1972 Wash. App. LEXIS 1005 (Wash. Ct. App. 1972).

Opinions

Horowitz, C.J.

Cervitor Kitchens, Inc. sued Jeannette Chapman as executrix of the will of Howard J. Chapman, deceased, to recover the sale price of four kitchen units sold to Chapman for installation in a dormitory at Pacific Lutheran University at Tacoma. Chapman then filed a third-[521]*521party complaint against Pacific Lutheran University, Inc. At the conclusion of plaintiff’s case, the court granted Chapman’s motion to dismiss Cervitor’s action. Chapman thereupon agreed to dismissal of its third-party complaint. Cervitor appeals the dismissal of its action against Chapman.

The facts are undisputed. Howard Chapman, prior to his death, operated a plumbing and heating company in Tacoma, Washington, as a sole proprietor. Cervitor Kitchens, Inc. is a California corporation engaged in the merchandising business. Prior to January 10, 1967, Chapman was the prime contractor for the plumbing work in the construction of a dormitory for Pacific Lutheran University, Inc. On January 10, 1967, Chapman purchased from Cervitor four kitchen units to be installed in the dormitory for a price of $1,180, f.o.b. job site. Subsequently, by change order, the price was increased by $26 per unit, or a total of $104.

On May 4, 1967, Chapman received from Cervitor four kitchen units enclosed in shipping crates or cartons. The units themselves were not inspected on behalf of Chapman, although Chapman’s manager was present when the units were delivered and noticed some minor exterior shipping damage on two of the crates. The manager then caused the units enclosed in their shipping crates or cartons to be stored in a separate room at the dormitory then under construction. No effort was made on behalf of Chapman to notify the architect and engineer of the receipt of the units, and no inspection was made of the units until shortly after installation. About August 5, 1967, Chapman caused the units to be removed from the crates and they were installed without further inspection in the dormitory.

A few days later Chapman notified the engineer that the units had been installed. Shortly thereafter, the engineer telephoned Chapman that the units were of poor quality and did not comply with specifications. He confirmed his and the architect’s disapproval to Chapman by letters dated August 18 and 25, 1967. The defects complained of included chipped and rough edges on the stove sections which did [522]*522not fit properly with the adjoining surface, poorly fitted doors, a poorly installed ahiminum panel along one side of the unit, and inadequate hinges on the refrigerator section. Meanwhile, Chapman’s manager notified Cervitor that the units did not comply with the specifications and would be rejected. Later Chapman caused the units to be shipped back to Cervitor, who refused to accept them. They were then stored in Los Angeles and ultimately sold for storage charges.

The sole question in the case is whether Chapman must be deemed to have accepted the four kitchen units because of his failure to inspect and reject them for a period of approximately 3 months after delivery and because of his installation of the units without prior inspection and rejection. Cervitor contends Chapman waited too long to inspect and reject the units, and his installation of the units without inspection further precludes him from rejecting them.

The Uniform Commercial Code, RCW 62A.2-606, went into effect on July 1, 1967. Prior thereto the Uniform Sales Act, §§ 47-48, was in effect. RCW 63.04.480, 63.04.490. Under both acts, the buyer was given a reasonable opportunity to examine goods delivered for the purpose of ascertaining whether they were in conformity with the contract. RCW 63.04.480, 62A.2-606. Furthermore, under both acts, the buyer, if he did any act in relation to the goods inconsistent with the seller’s ownership, was deemed to have accepted the goods so as to become hable for the price. RCW 63.04.490, 62A.2-606. Such acceptance under both the Uniform Sales Act and under the Uniform Commercial Code did not bar an action for damages for breach of any promise or warranty. RCW 63.04.500, 62A.2-714, 62A.2-715. See generally 3 S. Williston, Sales of Goods §§ 470, 476, 483, 484 (rev. ed. 1948); R. Nordstrom, Law of Sales §§ 142, 150, 156 (1970).

If the facts are disputed, the question of what is a reasonable time is for the trier of the fact. Kleeb v. Long-Bell Lumber Co., 27 Wash. 648, 68 P. 202 (1902); Beco, Inc. v. Minnechaug Golf Course, Inc., 5 Conn. Cir. Ct. 444, 256 [523]*523A.2d 522 (1968). Similarly, if the facts are disputed as to whether the buyer’s acts are inconsistent with the seller’s ownership, a fact question is presented.

If the facts are undisputed concerning the duration of the time for inspection, the question of whether the goods were retained for an unreasonable time becomes one for the court to decide. Kleeb v. Long-Bell Lumber Co., supra. Unless the buyer can provide a satisfactory explanation for delay otherwise unreasonable, the court as a matter of law must hold that the buyer has accepted the goods and is liable for the price. Beco, Inc. v. Minnechaug Golf Course, Inc., supra.

No doubt difficulties are encountered in applying these principles to varying states of fact and the holdings vary. However, in a number of cases inspection and rejection of goods sold have been held unreasonably delayed as a matter of law so as to entitle the seller to the price of the goods sold. Inland Seed Co. v. Washington-Idaho Seed Co., 160 Wash. 244, 294 P. 991 (1931) (2 months); Kleeb v. Long-Bell Lumber Co., supra (2 months); Carlsen v. Ziehme, 53 Fla. 235, 44 So. 181 (1907) (2 months); McNeill & Higgins Co. v. Martin, 160 La. 443, 107 So. 299 (1926) (3 months); Lukens v. Crozier, 84 Pa. Super. 402 (1925) (6 weeks); Frankel v. Foreman & Clark, Inc., 33 F.2d 83 (2d Cir. 1929) (4 months); Boessneck v. William Taylor Son & Co., 46 Misc. 63, 91 N.Y.S. 360 (1904) (5 months); House of Price, Inc. v. Kliegman Bros., 126 N.Y.S.2d 764, aff’d 283 App. Div. 1037, 131 N.Y.S.2d 875 (1953) (5 months). See Moore v. Foss & Co., 18 F.2d 635 (D. Mass. 1927) (2 months).

In Inland Seed Co. v. Washington-Idaho Seed Co., supra, the subject matter of the sale was a carload of peas packed in sacks and shipped to a warehouse pursuant to a sales contract. The peas were later destroyed when the warehouse burned down. The buyer had not opened the sacks of peas for inspection after the peas were unloaded and stored in the warehouse. The trial court held that the peas were [524]*524deemed accepted by the buyer. The Supreme Court, in affirming, said:

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Cervitor Kitchens, Inc. v. Chapman
500 P.2d 783 (Court of Appeals of Washington, 1972)

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500 P.2d 783, 7 Wash. App. 520, 11 U.C.C. Rep. Serv. (West) 534, 1972 Wash. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervitor-kitchens-inc-v-chapman-washctapp-1972.