Judgment reversed with directions.
Frank W. Beer, Hess Seaman, of Phoenix, for appellant.
Snell & Wilmer, of Phoenix, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[71 Ariz. 324] D. K. Murphy, appellant, and the National Iron and Metal Company, a corporation, appellee, who will hereinafter be referred to as plaintiff and defendant respectively, were engaged in the scrap metal business in Phoenix in 1946 and had been for many years. In August of that year plaintiff agreed to sell, and defendant agreed to buy, certain scrap metal belonging to plaintiff, a part of which was aluminum scrap salvaged from airplane parts including turrets, airplane fixtures, wings, A-frames and a large number of cases of purported aluminum scrap. Samuel Shapiro was the manager and sole owner of the defendant corporation and transacted all business with plaintiff connected with the sale and purchase of the scrap metal here involved.
Defendant claims that plaintiff then stated to it that the A-frames were made of aluminum and also that there was a lot of clean aluminum in the boxes and cases and that about one-half of the entire lot was clean aluminum. Plaintiff denies that he made any statement concerning the quality or percentage of aluminum content but that he did tell Shapiro that the scrap shown him consisted of clean and dirty aluminum. After looking over the yard a price of $ 25 per ton was agreed upon for the aluminum scrap subject, however, to inspection by defendant. In addition to the express agreement for inspection by defendant it is the prevailing custom in the scrap metal business that all scrap metal is bought subject [71 Ariz. 325] to inspection at the time of its delivery and that such inspection and weights govern and that the seller is paid upon the classification given it upon inspection. According to Shapiro's testimony this price was agreed upon because about half of the scrap "contained these turrets." Nothing was said as to what order the different kinds of scrap pointed out to defendant should be delivered. Plaintiff began delivery of aluminum scrap and when about one-half of it had been delivered, inspected and accepted by defendants a load of scrap consisting largely of an A-frame was delivered to defendant by plaintiff. It was found upon inspection to contain 1300 pounds of steel and only 1100 pounds of aluminum scrap. Defendant then notified plaintiff that the A-frames were supposed to have been aluminum scrap but that the one just delivered was not and that defendant could not use it. Defendant did offer, however, to pay $ 9 per ton for the steel which offer was accepted by plaintiff. This
load was accepted by defendant and credit given plaintiff at the rate of $ 25 per ton for the aluminum scrap and $ 9 per ton for the steel.
At that time Shapiro informed plaintiff he could not take any more turrets and that he would have to have the clean aluminum. After some further attempt to settle their differences defendant refused to receive further deliveries and refused to pay for the deliveries made and according to his testimony offered to return the scrap metal delivered to the plaintiff which plaintiff refused to accept. Plaintiff denied this offer was made. Thereupon plaintiff brought this action in the superior court of Maricopa County seeking recovery of the agreed purchase price for the scrap metal delivered to that date. Judgment was entered for defendant and plaintiff appeals. He assigns as error that the judgment is not justified by the evidence and is contrary to the law.
It is the contention of defendant that it purchased the aluminum scrap from plaintiff upon an express warranty that it was of a certain quality, to wit, that the entire quantity of aluminum scrap purchased would be at least 50% clean aluminum. As above stated plaintiff denies making such a statement. Counsel both for plaintiff and defendant have devoted considerable space in their briefs to a discussion of the character of warranties express and implied and the legal effect of inspection or the opportunity to inspect the goods purchased both in the case of express and implied warranties. We are of the opinion that it will not be necessary to consider this phase of the law because we do not believe the evidence shows defendant relied upon either an express or an implied warranty in the transaction under consideration.
The record does not disclose upon what theory the trial court proceeded in rendering judgment for defendant. Suffice it to say, however, that we fail to find any substantial [71 Ariz. 326] evidence in the record to support the judgment. Shapiro testified in substance that plaintiff called him and told him he had considerable scrap metal out at his yard he wanted cleaned up and asked him to stop by. That afternoon on his way home Shapiro stopped by the plaintiff's yard and together with plaintiff went over the yards looking over the different kinds of scrap metal he was offering for sale including the aluminum scrap here involved. (Plaintiff also had copper, brass and other scrap metals which he wanted to sell to defendant at that time.) The aluminum scrap consisted of quite a few large boxes or cases 3 to 4 feet square, airplane wings and turrets and what is described as an A-frame which was likewise a part of an airplane; that between plaintiff and defendant it was figured there was a total of about 25 tons of this aluminum scrap; that about half would consist of the turrets and the other half would consist of what would be called clean aluminum. He further testified that about 75% of the turrets was foreign material and only about 25% aluminum; that there was about 40 different alloys of aluminum and that airplane aluminum is in the lower brackets because it consists of many different alloys put together; that he (Shapiro) had been purchasing airplane aluminum of the same character right along. He testified however that airplane aluminum is classed as clean aluminum. Both Shapiro and Murphy had been in the scrap metal business for about 10 years. Shapiro testified that a man in the business ought to know what clean aluminum is. Defendant's business in scrap metal runs from $ 700 thousand to $ 1 million per year.
The fact that both plaintiff and Shapiro are experts in the scrap metal business is most persuasive against the contention by anybody that either relied upon any representation made by the other as to the quality of the scrap metal being sold or purchased from one by the other. The following questions asked Mr. Shapiro by his counsel and his answers thereto make it unnecessary to draw any ...