After citing and quoting from the Mazetti case certain exceptions to the privity rule, including that "Where the thing causing the injury is of a noxious or dangerous kind" (p. 889 [3] [215 P.2d]), the court held that because of lack of privity plaintiffs could not recover on warranty from the manufacturer of the insulating material used in installing the locker plant. (3) Williams v. S.H. Kress Company (1955), 48 Wn.2d 88 [ 291 P.2d 662], in which plaintiff consumer sued a manufacturer for damage allegedly resulting from the use of antiseptic as a mouthwash. After again citing and quoting (p. 664 [1, 2] [291 P.2d]) the exceptions mentioned in the Mazetti case, the court in this third case from Washington held (p. 665 [3] [291 P.2d]) that because the purchaser had not made known to the retailer that she wished a mouthwash, and the antiseptic was not so labeled, there was no implied warranty of fitness.
[2] RCW 63.04.160 applies to the relationship of buyer and seller. Cochran v. McDonald, 23 Wn.2d 348, 161 P.2d 305; Williams v. S.H. Kress Co., 48 Wn.2d 88, 291 P.2d 662. Implied warranties, if any, from manufacturer to consumer arise from the common law. LaHue v. Coca Cola Bottling, Inc., 50 Wn.2d 645, 314 P.2d 421. In Baum v. Murray, 23 Wn.2d 890, 162 P.2d 801, as between buyer and seller, we held the Uniform Sales Act to be a codification of the common law, to be so applied whenever applicable.
We think this provision clearly inapplicable. In the first place, it applies only where the goods are identified by description, and not where the goods to be purchased are specified. Williams v. S.H. Kress Co., 48 Wn.2d 88, 291 P.2d 662; American Soda Fountain Co. v. Medford Grocery Co., 128 Ore. 83, 262 P. 939; 1 Williston on Sales 588, ยง 230. The parties to this transaction contracted with reference to the clocks and other materials stored in the appellant's basement. It was not the agreement that the appellant would select from those items those which were merchantable or which conformed to the standard or trade definition of "clock."
Mandatory minimum sentences are those which neither the court nor the parole board has discretion to alter.See State v. Warner, 52 Or. App. 987, 993, 630 P.2d 385, rev den 291 P.2d 662 (1981). ORS 144.110 leaves imposition of a minimum sentence to the discretion of the trial court.
The jury was entitled to find the product contained a harmful ingredient from either the doctor's testimony or the circumstantial evidence of loss of hair, shortly after the completion of the permanent wave, in the precise area where the solution had been applied. Best's urges our case of Williams v. S.H. Kress Co., 48 Wn.2d 88, 291 P.2d 662 (1955) supports their position that circumstantial evidence may not be used. In that case, the plaintiff swallowed mouthwash and became ill shortly thereafter.