Pacific Western Commercial Co. v. Western Wholesale Drug Co.

In this action plaintiff sued as the assignee of one C. R. Haley to recover from defendant the purchase price of certain potassium carbonate alleged in the first count of the complaint to have been sold and delivered to defendant, and in the second count to have been bargained and sold to said defendant. The cause was tried upon an, agreed statement of facts. The trial court sustained the defense of a breach by the plaintiff’s assignor of an express warranty that the material sold should be at least ninety-five per cent pure. The essential facts upon which the judgment for defendant was based appear in the following •findings of the trial court, which are supported by the admitted facts and justifiable inferences therefrom:

Appellant admits the breach of warranty as found by the court, but contends that such breach was not a complete defense -to the action, for the reason that respondent elected not to reject the goods but to rely on a setoff for damáges as its sole defense, as to the amount of which damages no evidence was offered. This election is alleged to have resulted from (1) the failure of the defendant'to give prompt notice of the defect in the goods; (2) the making of…