Glaspey v. Wool Growers Service Corp. , 151 Wash. 683 ( 1929 )

If, assuming that such is shown by the facts in the record, there was substantial evidence of knowledge on the part of appellants of the previous diseased condition of the sheep sold and infected with a contagious disease, then there was imposed on the seller the especial duty to disclose such fact, even though there is no such duty to disclose ordinary latent defects (24 R.C.L. 348, § 736). Possibly there was a question for the jury on the facts on that feature.

But, conceding that there was sufficient evidence to take that question to the jury, the remedy of the buyer in damages in such case, where the property is kept, is the difference between the value of the property as it actually was and what it would have been if it were as it was represented to be. This universal rule applies to all branches of warranty as to condition or quality of goods and chattels sold upon warranty; to which may be added such special damages as are the natural consequence and proximate result of the seller's fraud (24 R.C.L. 354-355). These principles have always been followed by this court respecting all breaches of warranty as to condition or quality.

It seems to me that these rules were violated by the trial court, both in the admission and exclusion of certain items of evidence and in giving and refusing instructions to the jury.

These several items resulted in large recoveries thereon and are not discussed in the opinion. On account of such manifest errors, a reversal and new trial should be ordered.

Upon these matters I feel obliged to dissent from the majority.

TOLMAN, J., concurs with HOLCOMB, J.