Utter, C.J.
Respondent James A. Daughtry filed suit in Island County Superior Court claiming breach of warranty in the alleged failure of a home sewage system manufactured by petitioner Jet Aeration Company. The trial court awarded judgment to Daughtry, and the Court of Appeals affirmed. We granted review to determine (1) whether the trial court properly considered and found the statute of limitations to be no bar to the action, and (2) whether the trial court properly rejected Jet Aeration's argument that lack of privity between the parties required dismissal of the case. We find that in the context of the facts of this case the trial court's findings and conclusions do not resolve these issues, and remand the case for further findings and conclusions consistent with the standards hereafter discussed.
In July 1968, Daughtry enlisted the assistance of Arne Seltveit in procuring and installing an aeration-type home sewage treatment system for the home Daughtry was [706]*706building in Island County. Such a system is like a conventional septic tank, but employs a motor-driven agitator to effect through aerobic digestion more complete breakdown of the wastes to be treated.
Seltveit chose such a system manufactured by Jet Aeration Company, and purchased the system from Ted Tidrington, Jet Aeration's local distributor. This was done either on his own judgment or on Daughtry's request. Tidrington's "Job Invoice" covering the transaction shows a discounted sale of the system to Seltveit for "resale."
Seltveit then installed the system on Daughtry's property, charging both for his services as an installer and his costs plus a markup on the Jet system. Tidrington, as part of a limited service program provided with the system, visited Daughtry semi-annually to insure proper functioning of the system. He continued to do so occasionally at no cost even after the 2-year service program had expired.
In 1971, Daughtry began to experience difficulties with the treatment of home effluents, as a solid material appeared to clog the discharge pipes in his septic drain field. Water backed up into the processing chambers of the Jet system and had to be pumped out on numerous occasions. Over the ensuing 2 years a number of persons offered advice, among them Seltveit, Tidrington, and Bob Masters, Tidrington's successor as distributor of the Jet Aeration system. Some modifications of the drain field were undertaken. At one point Tidrington substituted a new processing tank, and eventually Jet Aeration substituted a new agitation unit to try to alleviate Daughtry's difficulties. These efforts were to no avail.
In 1973, Daughtry filed suit, naming as defendants Tidrington and Jet Aeration (but not Seltveit). Trial was held in March 1975. The principal issue at trial was whether the cause of Daughtry's troubles was in inadequate drainage or a defect in the Jet Aeration system. In a finding not before us for review, the trial.court resolved this issue for the plaintiff. As indicated above we consider only two [707]*707additional issues, respectively involving the statute of limitations and the question of privity between the parties.
Jet Aeration raised the statute of limitations as an affirmative defense. As the above discussion indicates, Daughtry purchased the sewage treatment system in 1968. He first became aware of apparent malfunctioning in 1971. He subsequently filed suit in 1973. Jet Aeration contended both in its pleadings and by motion to the court that a 4-year statute of limitations had run in 1972. The trial court denied Jet Aeration's oral motions to dismiss for running of the statutory period, but made no finding or conclusion as to that issue in its findings and conclusions. Daughtry urges, and the Court of Appeals concluded, that no finding was necessary. We disagree.
It is the general rule in this state that findings of fact need not be made concerning every contention made by parties to a case. State v. Bastinelli, 81 Wn.2d 947, 949, 506 P.2d 854 (1973). See also Miller v. Geranios, 54 Wn.2d 917, 919, 338 P.2d 763 (1959); Hering v. Department of Motor Vehicles, 13 Wn. App. 190, 192, 534 P.2d 143 (1975). However, statement of this principle does not dispose of the issue here. For it has also been held that a finding must be made as to all of the "material issues." Bowman v. Webster, 42 Wn.2d 129, 134, 253 P.2d 934 (1953); Wold v. Wold, 7 Wn. App. 872, 875, 503 P.2d 118 (1972), and cases cited therein.
These principles are not inconsistent. They do not require negative findings of fact or findings on nonmaterial issues, but do require the trial court in its findings to inform the appellate court, on material issues, "'what questions were decided by the trial court, and the manner in which they were decided . . .'" Bowman v. Webster, supra at 134, quoting Kinnear v. Graham, 133 Wash. 132, 133, 233 P. 304 (1925); see also Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wn. App. 709, 558 P.2d 821 (1977). The trial court's findings here do not so inform this court.
[708]*708The statute of limitations applicable to the instant case is provided at RCW 62A.2-725.1 In pertinent part this provision declares that:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
Since the sewage treatment system in question was purchased July 16, 1968, more than 4 years prior to filing of the action on April 4, 1973, the cause of action could only survive if it accrued subsequent to delivery of the system, from breach of explicit warranty in conformity with the exception indicated in subsection (2). The subsection permits suit within 4 years of reasonable discovery of a breach, the breach occurring during performance explicitly warranted.
The trial court did find express and implied warranties of proper functioning were made and subsequently breached by Jet Aeration. There is no precise analysis or finding by the trial court, however, as to the period of express warranty, whether the breach occurred during that period, and whether the breach was reasonably discovered sufficiently along in the period so as to permit filing of the suit when Daughtry did so (April 4, 1973). Certain brochures introduced as evidence at trial by Daughtry do demonstrate a 1- [709]*709or 2-year guaranty of freedom from defects by Jet Aeration. Testimony by Tidrington, however, supports a contention of no difficulty during the first 2 years of the system's operation.
Free access — add to your briefcase to read the full text and ask questions with AI
Utter, C.J.
Respondent James A. Daughtry filed suit in Island County Superior Court claiming breach of warranty in the alleged failure of a home sewage system manufactured by petitioner Jet Aeration Company. The trial court awarded judgment to Daughtry, and the Court of Appeals affirmed. We granted review to determine (1) whether the trial court properly considered and found the statute of limitations to be no bar to the action, and (2) whether the trial court properly rejected Jet Aeration's argument that lack of privity between the parties required dismissal of the case. We find that in the context of the facts of this case the trial court's findings and conclusions do not resolve these issues, and remand the case for further findings and conclusions consistent with the standards hereafter discussed.
In July 1968, Daughtry enlisted the assistance of Arne Seltveit in procuring and installing an aeration-type home sewage treatment system for the home Daughtry was [706]*706building in Island County. Such a system is like a conventional septic tank, but employs a motor-driven agitator to effect through aerobic digestion more complete breakdown of the wastes to be treated.
Seltveit chose such a system manufactured by Jet Aeration Company, and purchased the system from Ted Tidrington, Jet Aeration's local distributor. This was done either on his own judgment or on Daughtry's request. Tidrington's "Job Invoice" covering the transaction shows a discounted sale of the system to Seltveit for "resale."
Seltveit then installed the system on Daughtry's property, charging both for his services as an installer and his costs plus a markup on the Jet system. Tidrington, as part of a limited service program provided with the system, visited Daughtry semi-annually to insure proper functioning of the system. He continued to do so occasionally at no cost even after the 2-year service program had expired.
In 1971, Daughtry began to experience difficulties with the treatment of home effluents, as a solid material appeared to clog the discharge pipes in his septic drain field. Water backed up into the processing chambers of the Jet system and had to be pumped out on numerous occasions. Over the ensuing 2 years a number of persons offered advice, among them Seltveit, Tidrington, and Bob Masters, Tidrington's successor as distributor of the Jet Aeration system. Some modifications of the drain field were undertaken. At one point Tidrington substituted a new processing tank, and eventually Jet Aeration substituted a new agitation unit to try to alleviate Daughtry's difficulties. These efforts were to no avail.
In 1973, Daughtry filed suit, naming as defendants Tidrington and Jet Aeration (but not Seltveit). Trial was held in March 1975. The principal issue at trial was whether the cause of Daughtry's troubles was in inadequate drainage or a defect in the Jet Aeration system. In a finding not before us for review, the trial.court resolved this issue for the plaintiff. As indicated above we consider only two [707]*707additional issues, respectively involving the statute of limitations and the question of privity between the parties.
Jet Aeration raised the statute of limitations as an affirmative defense. As the above discussion indicates, Daughtry purchased the sewage treatment system in 1968. He first became aware of apparent malfunctioning in 1971. He subsequently filed suit in 1973. Jet Aeration contended both in its pleadings and by motion to the court that a 4-year statute of limitations had run in 1972. The trial court denied Jet Aeration's oral motions to dismiss for running of the statutory period, but made no finding or conclusion as to that issue in its findings and conclusions. Daughtry urges, and the Court of Appeals concluded, that no finding was necessary. We disagree.
It is the general rule in this state that findings of fact need not be made concerning every contention made by parties to a case. State v. Bastinelli, 81 Wn.2d 947, 949, 506 P.2d 854 (1973). See also Miller v. Geranios, 54 Wn.2d 917, 919, 338 P.2d 763 (1959); Hering v. Department of Motor Vehicles, 13 Wn. App. 190, 192, 534 P.2d 143 (1975). However, statement of this principle does not dispose of the issue here. For it has also been held that a finding must be made as to all of the "material issues." Bowman v. Webster, 42 Wn.2d 129, 134, 253 P.2d 934 (1953); Wold v. Wold, 7 Wn. App. 872, 875, 503 P.2d 118 (1972), and cases cited therein.
These principles are not inconsistent. They do not require negative findings of fact or findings on nonmaterial issues, but do require the trial court in its findings to inform the appellate court, on material issues, "'what questions were decided by the trial court, and the manner in which they were decided . . .'" Bowman v. Webster, supra at 134, quoting Kinnear v. Graham, 133 Wash. 132, 133, 233 P. 304 (1925); see also Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wn. App. 709, 558 P.2d 821 (1977). The trial court's findings here do not so inform this court.
[708]*708The statute of limitations applicable to the instant case is provided at RCW 62A.2-725.1 In pertinent part this provision declares that:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
Since the sewage treatment system in question was purchased July 16, 1968, more than 4 years prior to filing of the action on April 4, 1973, the cause of action could only survive if it accrued subsequent to delivery of the system, from breach of explicit warranty in conformity with the exception indicated in subsection (2). The subsection permits suit within 4 years of reasonable discovery of a breach, the breach occurring during performance explicitly warranted.
The trial court did find express and implied warranties of proper functioning were made and subsequently breached by Jet Aeration. There is no precise analysis or finding by the trial court, however, as to the period of express warranty, whether the breach occurred during that period, and whether the breach was reasonably discovered sufficiently along in the period so as to permit filing of the suit when Daughtry did so (April 4, 1973). Certain brochures introduced as evidence at trial by Daughtry do demonstrate a 1- [709]*709or 2-year guaranty of freedom from defects by Jet Aeration. Testimony by Tidrington, however, supports a contention of no difficulty during the first 2 years of the system's operation.
Where, as here, the running of the statute of limitations is determinative, and whether it has been tolled depends upon the specific nature of express warranties, and time of accrual of the action, we hold the trial court must enter findings on these issues.
The second issue before us for review concerns Jet Aeration's claim that it shared no privity of contract with Daughtry. Jet Aeration contended at trial that the sale had been to Seltveit, not a party to the action, who in turn sold the sewage system to Daughtry. On this basis Jet Aeration moved the trial court to dismiss the case against it. The trial court denied the motion to dismiss the case against Jet Aeration, though it had granted a similar motion to dismiss against Tidrington, the Jet Aeration distributor. The trial court's findings indicate its view that Daughtry "purchased from the defendant Jet Aeration Company" the sewage treatment system.
Before we consider the merits of Jet Aeration's challenge to the trial court's finding, we must determine the adequacy of the petitioner's appellate brief in this regard. In its brief, Jet Aeration makes the following assignment of error concerning the privity issue:
Appellant respectfully submits that the trial court erred:
3. In ruling that privity of contract existed between appellant and respondent or is not required to hold appellant liable for breach of any warranties and for failing to dismiss appellant from the law suit because of lack of privity of contract.
This assignment is not in strict compliance with RAP 10.3(g), which requires specific reference to the finding challenged. However, there is no uncertainty as to which finding is in fact challenged since Jet Aeration cites [710]*710and sets out the challenged finding in the text of its argument on the issue:
Also the evidence offered at trial clearly does not support paragraph I of the Findings of Fact which reads as follows:
I.
On or about July 15, 1968, the Plaintiff purchased from the defendant Jet Aeration Company an individual home sewage treatment system.
The evidence clearly indicates the sewage treatment system was purchased from the retailer, Arne Seltveit, and not from appellant.
RAP 1.2(a) makes clear that technical violation of the rules will not ordinarily bar appellate review, where justice is to be served by such review. In these circumstances, where the nature of the challenge is perfectly clear, and the challenged finding is set forth in the appellate brief, we will consider the merits of the challenge.
Turning then to the privity question, Jet Aeration's contention is that the evidence demonstrates the purchase was by the installer, Arne Seltveit, who in turn resold the system to Daughtry. The evidence, including the sales invoice and testimony by Seltveit that he charged Daughtry a markup on the product, clearly suggest Seltveit to be an independent intermediary. Some testimony by Daughtry and Seltveit that Seltveit was purchasing the Jet system for Daughtry, suggests an agency relationship. However, the trial court appeared to reject such a theory in its dismissal of the case against Tidrington, the Jet Aeration distributor.2
We cannot determine whether the trial court intended to find privity in its statement that Daughtry "purchased" the system from Jet Aeration. The court's comments in denying [711]*711the oral motion rather suggest it did not conclude privity to be a necessary element to the case.
The general rule in this state has been that contractual privity is a requisite to warranty. Dimoff v. Ernie Majer, Inc., 55 Wn.2d 385, 389, 347 P.2d 1056 (1960); Fleenor v. Erickson, 35 Wn.2d 891, 898, 215 P.2d 885 (1950); Berg v. General Motors Corp., 87 Wn.2d 584, 594, 555 P.2d 818 (1976) (dictum). Yet, exceptions may be cited where claims essentially sound in tort rather than contract. These include cases of noxious or dangerous products, fraud or deceit in the sale of a product, and negligence in the sale or construction of a product not otherwise dangerous. Dimoff v. Ernie Majer, Inc., supra, and Fleenor v. Erickson, supra. Most recently we have held no privity is required to obtain recovery for tortious conduct by a remote manufacturer even when only damages for pecuniary loss are claimed. Berg v. General Motors Corp., supra.
In Berg we noted with approval the case of Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965), a case which respondent urges as a parallel to the instant action. The analogy falls short. In Santor, the court held the absence of the retailer in a consumer suit would prove no bar, where the retailer had relocated to a distant state, leaving only the distributor and manufacturer available for suit. Here the plaintiff apparently chose not to sue the intermediary Seltveit, and the court dismissed the case against the distributor for lack of privity. We decline to apply the reasoning of Santor to the instant case. Accordingly, privity is necessary to the suit between respondent and petitioner.
The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for additional findings regarding the running of the statute of limitations, and for a determination, in light of the evidence, as to the existence of a privity relationship between the parties.
Stafford, Wright, Brachtenbach, Horowitz, and Dolliver, JJ., concur.