United States Cast Iron Pipe & Foundry Co. v. Ellis

201 P. 900, 117 Wash. 601, 1921 Wash. LEXIS 891
CourtWashington Supreme Court
DecidedNovember 22, 1921
DocketNo. 16300
StatusPublished
Cited by3 cases

This text of 201 P. 900 (United States Cast Iron Pipe & Foundry Co. v. Ellis) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Cast Iron Pipe & Foundry Co. v. Ellis, 201 P. 900, 117 Wash. 601, 1921 Wash. LEXIS 891 (Wash. 1921).

Opinion

Fullerton, J.

By the record in this cause, it is disclosed that the city of Seattle entered into a contract with the appellant Ellis, by the terms of which the appellant agreed to furnish the necessary piping and install for the city two certain water mains through a concrete tunnel which the city had theretofore caused to be constructed. The tunnel was some nine hundred feet in length, was circular in form, and about twelve feet in diameter. It was designed to carry mains in addition to those the appellant was required by his contract'to install, and one of these, a water main forty-two inches in diameter, had then been laid on the floor of the tunnel. Above this main, steel “I-beams” had been inserted across the tunnel eight feet apart, and it was on these beams that the appellant was required to lay the mains which he undertook to install. The plans and specifications accompanying the contract prescribed the character of the work with particularity. One of the mains was to be constructed from joints of pipe twenty-four inches in diameter of a kind known as “class D. flanged cast iron pipe with plain, straight flanges,” to be bolted together in a described manner, and was required to withstand when in place a water pressure of two hundred and twenty-five pounds per square inch.

The appellant purchased the pipe for the mains from the respondent. When the twenty-four-inch main was laid in the tunnel, some three of the joints of pipe broke on the application of test pressures. These breaks occurred at different tests and were separately replaced. Owing to the cramped space in which the workmen were required to work and the great weight of the joints, the work of replacing a broken joint was exceedingly difficult and costly. The appellant conceived [603]*603that the expense of replacing them was an expense for which the respondent was liable by the terms of the contract under which the pipes were purchased, and withheld from the purchase price the cost of the replacement. The respondent disclaimed liability, filed a claim of lien for the unpaid part of the purchase price against the statutory bond given by the appellant to the city, and thereupon instituted the present action to enforce the claim. The appellant sought to set off the expense he had incurred in replacing the broken joints of pipe, and on the issue of the respondent’s liability for the expense so incurred, the cause was tried by the court sitting without a jury. The trial court disallowed the set-off, and entered a judgment in favor of the respondent.

The contract between the appellant and respondent is evidenced by certain telegrams and letters passing between appellant and the respondent’s agent. Preparatory to bidding on the work, the appellant interviewed the agent and ascertained from him the cost at which his company could furnish the required pipe, exhibiting to the agent at that time the plans and specifications the city had prepared for the work. Later on, and after the appellant had been awarded the contract for the work, he sent to the agent a telegram ordering, with other sized pipe, “eighty-three joints twenty-four-inch flanged D” pipe, confirming the order a few days thereafter by a letter in which he gave shipping directions, and in which he stated that the pipe was “to fill the specifications of the city of Seattle for the service mains and accessories of the Lake Union tunnel.” In due time the pipe was furnished by the respondent and, after inspection and such tests as could then be applied by the appellant, was installed in the pipe line. On turning on the [604]*604water after the pipe had been installed, a joint of the pipe broke when the pressure of the water reached some twenty-five pounds to the square inch. This joint was taken out and replaced by another, and the water again applied, when another joint broke at about the same pressure. This was likewise replaced and the water again applied, when another joint gave way at a somewhat increased pressure, although at a pressure much less than the pipe was required to withstand under ordinary working conditions, and, of course, at a pressure much less than the appellant guaranteed with the city that the pipe would withstand when in place.

As to the cause of the breaking of the pipe the trial court made no specific finding. It did, however, make the following findings:

“That the 24-inch cast-iron flange pipe mentioned in said telegram of defendant Ellis, which is set forth in paragraph VIII of these findings, also in said, answer thereto of plaintiff, which is set forth in paragraph IX of these findings, also in said letter of defendant Ellis, which is set forth in paragraph XI of these findings and designated as Class D, was and is a standard well known and definite kind and class of cast-iron flange pipe, which was manufactured by plaintiff and by other manufacturers of cast-iron pipe, according to standard specifications for such manufacture, and the same was so designated as Class D in order to identify such pipe as being such known, described and definite article. That defendant Ellis in ordering such pipe, intended to order, and plaintiff in agreeing to fill such order, intended to supply said 83 lengths of such known, described and definite pipe.
“That no one of the said three pipes broke because of the water pressure to which it was so subjected, nor did any one of said pipes show any sign or evidence of any defect in any particular whatever. That the breaks in said pipes were each circumferential and not such as would be made by internal water pressure, [605]*605nor such, as would result from said pipes being defective or too poorly made to withstand the pressure and strains which the same were expected and intended to be subjected to. That pieces were cut from two of said broken pipes, at both sides of the breaks therein, and such pieces were subjected to tensile strain tests, and each thereof tested above the requirements for material in such pipes. That each of said pipes was measured and found to be of the proper thickness.
“The court finds that none of the pipe so sold by plaintiff to defendant Ellis, on account of which said defendant claims damages against plaintiff in this action, showed any deficiency in size, thickness, quality of material, insufficiency in construction, or to any defect whatsoever, and that defendant Ellis has wholly failed to establish by the evidence in this case that any such pipe was in any manner defective or that any loss or damage sustained by him was due to or caused by any breach of plaintiff’s contract with him for the sale of said pipe; and defendant Ellis wholly failed to sustain either of his affirmative defenses herein, except as to the payments for freight and gaskets credited to him as aforesaid.”

As grounds for reversal of the judgment entered, the appellant makes two principal contentions; first, that in the contract under which the piping was purchased there was an implied warranty of fitness for purpose; and second, that the evidence preponderates in favor of the conclusion that the pipes were defective because of faults in their manufacture.

Noticing the first of the contentions, this court has held, and it is perhaps the general rule, that where a buyer orders a specific article from a dealer or manufacturer, stating the purpose for which the article is intended to be used, and trusts to the judgment of the seller the selection of the article which shall be suitable for the intended purpose, there is an implied warranty that the article furnished shall be reasonably fit [606]

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Cite This Page — Counsel Stack

Bluebook (online)
201 P. 900, 117 Wash. 601, 1921 Wash. LEXIS 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-cast-iron-pipe-foundry-co-v-ellis-wash-1921.