HAINING LUMBER CO. et al.
OCTAVIUS LEON, Inc
Judgment affirmed in part and reversed in part.
Byrne & Byrne, of Prescott, attorneys for appellants.
J. Andrew West, of Prescott, attorney for appellee.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur.
[70 Ariz. 32] The facts in this case are that in June, 1947, the Haining Lumber Company, a corporation, hereinafter called defendant, sold and shipped a carload of lumber, shippers' order notify to Tri Boro Mill Works, a New York corporation located in New York, and drew a draft on a Mr. M. Stettner, president of the company for the purchase price thereof. Early in July Mr. Stettner arranged with Octavius Leon, Inc., hereafter called plaintiff, to take the car of lumber and assigned the bill of lading to plaintiff who paid the draft in full to the defendant.
At the time of the arrangement with plaintiff to take the lumber in question Stettner called Mr. Crain, president of defendant company at Prescott and advised him of the transaction with plaintiff and procured from Mr. Crain permission for plaintiff to inspect the lumber which plaintiff
did, but did not, and actually could not, at that time check the same as to quantity.
Upon the arrival of the car at Yonkers, New York, where plaintiff's business is located, plaintiff proceeded to unload the lumber, and found a shortage of over 9000 board feet of 2-inch lumber consisting almost exclusively of 2 X 12 boards. The shortage thus discovered based on the purchase price thereof had a value of $ 881.08. Plaintiff notified defendant of the shortage and demanded a reimbursement of the above amount. After considerable correspondence between defendant and plaintiff and its agents and representatives, the demand was finally rejected. Plaintiff filed suit in the Superior Court of Yavapai County against defendants for the recovery of the amount of the claim. The cause was tried to the court without a jury and judgment entered for the plaintiff and against the Haining Lumber Company, Harold E. Crain, Proprietor, and Harold E. Crain, for the full amount of the claim and for costs. From this judgment defendant appeals to this court and assigns the following error:
"1. That there was no evidence adduced in the trial of the cause, oral or documentary, showing any warranty of quantity of lumber, made by defendants to plaintiff, nor * * * any facts proven which under any doctrine of law, could create a liability against defendants and in favor of plaintiff."
[70 Ariz. 33] Chapter 52, article 5, A.C.A.1939, commonly referred to as The Uniform Sales Act sets forth a number of implied warranties incident to the sale of personal property but the only one with which we are concerned in this case is section 52-514 thereof which reads as follows: "Implied warranties in sale by description. -- In a contract to sell or of sale of goods by description, there is an implied warranty that the goods shall correspond with the description, and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description."
In the invoice accompanying the bill of lading and draft the lumber involved in this case was described according to board dimensions. The evidence shows that there was invoiced to the purchaser 18,610 linear feet of 2 X 12-inch boards and the check at destination showed only 12,239 linear feet of that dimension. The invoice also showed 8,126 linear feet of 2 X 4's while the check at destination showed 12,899 ...