West Coast Lumber Co. v. Wernicke

In the interest of clarity, the plaintiff in error will be referred to as the defendant and the defendants in error will be referred to as the plaintiffs.

Plaintiffs brought suit against the defendant, the gist of the cause of action, alleged in a declaration of three counts, being that the latter entered into a verbal contract to sell them Texas Seed Ribbon Cane Seed, warranting it to be of the variety represented, and that when the crop approached maturity it was discovered that sixty per cent of it was, in truth, Kaffir Corn; that the one is so similar to the other, it was impossible for the plaintiffs to distinguish between the two at the time of purchase of the seed; that Kaffir Corn was wholly unsuitable for ensilage purposes in the particular territory where planted because it easily molds and spoils, and that the two varieties do not mature simultaneously, with the result that it is impossible to harvest them together, consequently, when this was attempted, either the one was immature or the other was overmature. The crop harvested was averred to have been far short of the one anticipated by reason of the breach of warranty, and damages were claimed because of this and also because of the unfitness of the matured crop for ensilage.

Many pleas were filed to the three counts of the declaration, and the defendants also filed separate pleas to each count. Our examination of the defenses leads us to believe that every issue which could have been presented under the statements made in the declaration were passed on by court and jury.

A verdict was found in favor of plaintiffs for Seventeen hundred and fifty Dollars, and judgment was entered thereon, from which the defendant sued out a writ of error.

It was shown by the testimony that it is difficult for an expert, even to determine from a casual examination, the difference between Kaffir Corn and Texas Seed Ribbon Cane Seed, both belonging to the sorghum family, and it was established, also, that they strongly resemble each other while growing until the point of maturity is neared. The Texas Seed Ribbon Cane has a head or blossom which opens fully to the sunlight and, therefore, retains little dampness, while the head of the Kaffir Corn does not open so widely, consequently, retains moisture and easily molds.

When the two varieties are planted together and, hence, reaped at the same time, as was done in this case, and are placed in a silo the Kaffir Corn quickly molds and spoils the ensilage.

There was ample testimony to establish that the plaintiffs suffered a loss of at least the amount appearing in the jury's verdict, due to their reliance on the warranty that the seed purchased from the defendant would produce Texas Seed Ribbon Cane which plaintiff intended to use for ensilage.

It was said in Grafton-Stamps Drug Co. v. Williams, 105 Miss. 296,62 South. Rep. 273:

"A sale of seed by name raises an implied warranty that it is true to name; and the fact that the buyer inspected the seed before purchasing is immaterial, when its character cannot ordinarily be ascertained by any reasonable inspection. Note to Leonard v. Crary Canning Co., 37 L.R.A. (N.S.) 79; 35 Cyc. 409-411; 30 Ency. of Law (2d Ed.) P. 157, par. 7; Id. p. 159, par. 1 of subdivision XI; Id. p. 612, par. 5." 62 South. Rep. text 273.

The decision of this Court in the case of Vaughan's Seed Store v. Stringfellow, 56 Fla. 708, 48 South. Rep. 410, was as follows:

"The defendant's engagement was that the seed sold was the Arlington White Spine cucumber seed and would produce Arlington White Spine cucumbers. The natural consequence of a breach of such a warranty would be a crop of cucumbers different in kind and quality from that guaranteed by the defendant. Where, then, the seed produces a crop not harmful to the land, but of a poorer character, or of an inferior quality, and less value then would have been produced had the warranty been fulfilled, the measure of damage is the value of the crop of the true product, such as the seed was warranted to produce, and such as would ordinarily have been produced that year, less the expense of raising it, and less also the value of the crop actually raised from the seed sold; or, in other words, the measure of damage would be the difference between the market value of the crop raised and the crop from the seed ordered. 30 Am. Eng. Ency. Law (2d Ed.) 219; Wolcott v. Mount,36 N.J. Law, 262, 13 Am. Rep. 438; White v. Miller, 71 N.Y. 118,27 Am. Rep. 13; Passinger v. Thorburn, 34 N.Y. 634, 90 Am. Dec. 753; Depew v. Peck Hardware Co., 121 App. Div. 28, 105 N.Y. Supp. 390." 48 South. Rep. text 414.

Applying the rule discussed in these authorities to the facts of the instant case, as we understand them from the testimony upon which the jury had a right to rely, the conclusion is easily reached that plaintiffs suffered damage to the extent of the amount named in the verdict as a direct result of the breach of warranty on the part of defendant. See annotations 16 A.L.R. 859; 32 A.L.R. 1241 and 62 A.L.R. 451.

It seems quite clear that Kaffir Corn and Texas Seed Ribbon Cane are members of the sorghum family, and that the seed of the two plants cannot be distinguished one from the other, even by an expert, except upon minute examination. The character of the two plants is such that they do not require the same period of time for germination and growth to maturity. Where the seeds are planted at the same time, as was done in this case, and a great proportion of the crop is ready for the harvest while the remainder has not reached maturity, it seems that a loss in the tonnage would be inevitable.

The other phase of the claim for damage is based on a difference in the characteristics of the two varieties of sorghum when they do finally mature. Because one retains moisture it easily "sours" when placed in a silo and, of course, spoils the contents.

The damage complained of by the plaintiffs is easily traceable by the testimony to the shortage of tonnage as a result of the mixing of the seeds as well as the spoilage of the entire crop by reason of the admixture.

In his charge to the jury the court admonished them that there was no "claim of warranty as to the quality of the seed, whether or not it would germinate"; that the only claim was "based on its not being the proper kind of seed, not being the seed they bought and which the defendant claimed to sell them."

The court also instructed the jury that the measure of damage would be the difference between the crop actually raised and its value had the seed been true to name, after taking into consideration whether or not proper care was shown by the farmer in growing and harvesting the crop. This instruction seems to have complied with the rule which we have quoted.

It is well to draw attention to the further instruction by the Court, given at the request of the defendant, that there was no liability for the remote or conjectural consequences of the defendants' act and that any recovery should be the natural or approximate result of the defendants' alleged wrong doing.

We have carefully examined the pleadings, the testimony offered to support them and the charges by which the jury were governed in considering and weighing the evidence in the case. After doing so, we find no reversible error, and believe that the judgment should not, therefore, be disturbed.

It is ordered that the judgment of the lower court be, and it is hereby, affirmed.

TERRELL, C.J., and WHITFIELD, BROWN and CHAPMAN, J.J., concur.

BUFORD, J., dissents.