American Agricultural Chemical Co. v. McKinney

• Decision Date: 13 February 1917
• Citation: 173 Ky. 820,191 S.W. 647
• Parties: AMERICAN AGRICULTURAL CHEMICAL CO. v. MCKINNEY.
• Court: Kentucky Court of Appeals

191 S.W. 647

173 Ky. 820

AMERICAN AGRICULTURAL CHEMICAL CO. v. MCKINNEY.

Court of Appeals of Kentucky.

February 13, 1917

Appeal from Circuit Court, Rockcastle County.

Action by the American Agricultural Chemical Company against K. J McKinney. Judgment for defendant, and plaintiff appeals. Reversed, with directions for a new trial in conformity with opinion.

C. C Williams and E. R. Gentry, both of Mt. Vernon, for appellant.

Bethurum & Lewis, of Mt. Vernon, for appellee.

CARROLL J.

The appellant, the American Agricultural Chemical Company, a manufacturer of farm fertilizers, appointed in the years 1910 and 1911 the appellee McKinney, its agent at Mt. Vernon, in Rockcastle county, for the sale of its fertilizers to farmers in that vicinity. It had a written contract in each of these years with McKinney by which the payment of all notes that he took from farmers for fertilizers sold them were guaranteed by him, and pursuant to this contract McKinney did guarantee the payment of a number of notes that the farmers who had executed them refused to pay. Thereupon the chemical company brought this suit against McKinney upon his contract of guaranty.

After setting out its cause of action in proper form, it further averred:

That it had in each of the years, "and before it sold or furnished any of said fertilizer to the defendant, furnished to the director of the agricultural experiment station of the Agricultural and Mechanical College of Kentucky, known as the Kentucky agricultural experiment station, a sealed quantity of such commercial fertilizer, not less than one pound sufficient for analysis, accompanied by an affidavit that the sample so furnished was a fair and true sample of the commercial fertilizer which the plaintiff company desired to sell in the state of Kentucky, and said affidavit also gave the name and address of the plaintiff company, the names of the fertilizers to be sold, the number of net pounds in each package, the minimum percentage of the essential ingredients guaranteed in each fertilizer in the form and manner as prescribed by said director.

"The director of said experiment station, upon receipt of said affidavit and samples issued to the plaintiff company labels, as prescribed by law, giving the names of fertilizers, the number of pounds in each package, the date of said analysis, the estimated value per hundred of the fertilizer, the minimum percentage composition in terms approved by said director as certified to in affidavit furnished by the plaintiff company, together with a certificate from the said director over his fac simile signature authorizing the sale of such fertilizer according to the provision of law.

The plaintiff avers and charges that the fertilizer furnished the defendant was labeled with the analysis as made by the director of the agricultural experiment station, and that all the fertilizer furnished the defendant was of the kind and grade as the sample furnished by the plaintiff to the said director for analysis."

For answer to this suit McKinney set up that the fertilizer was found to be of no value by the farmers to whom he sold it and from whom he took the notes, and for this reason they refused to pay the notes; that on account of the worthless character of the fertilizer there was no consideration for the notes executed by the farmers, and consequently he was not bound by his guaranty to pay the notes.

On a trial of the case before a jury there was a verdict for McKinney, and the chemical company, although the amount involved is less than $500, filed in this court a copy of the record, and has moved the court to grant it an appeal. After considering the record, we have reached the conclusion that the motion for an appeal should be sustained.

The grounds relied on for reversal will be noticed in the course of the opinion. Before, however, coming to a discussion of the questions in the case, it may be well to refer to the statutes on the subject of farm fertilizers. In section 1822, subsec. 1, of the Kentucky Statutes, it is provided:

That in each year before any person or company shall sell or offer for sale in this state any commercial fertilizer it shall furnish to the director of the agricultural experiment station "a sealed quantity of such commercial fertilizer, not less than one pound, sufficient for analysis, accompanied by an affidavit that the sample so furnished is a fair and true sample of a commercial fertilizer which the said person or company desires to sell in this state, and said affidavit shall also state the name and address of the manufacturer, the name of the fertilizer, the number of net pounds in each package, and the minimum percentages of the essential ingredients guaranteed in each fertilizer, in such form and manner as may be prescribed by said director."

In subsection 2 it is provided that the director of the experiment station shall furnish to the person or company labels on which shall be printed the name and address of the manufacturer, the name of the fertilizer, the number of pounds in each package, the date of the analysis, and the composition of the fertilizer.

In subsection 9 it is provided that the label attached to any package sold or offered for sale shall be accepted as the guaranty of the manufacturer that the fertilizer contains the kinds and amount of essential ingredients printed on the tag, and that any person attaching a fraudulent label or a label representing it to contain a larger percentage of any one or more of the essential ingredients than is actually found by analysis to be contained in the fertilizer shall be punished by a fine fixed in the statute.

This statute further provides in subsection 8 that any purchaser of commercial fertilizer for his own use, and not for sale, may send a sample of the same to the experiment station for analysis, and that:

"Such samples for free analysis shall be taken by the purchaser in the presence of the person, company or agent selling the fertilizer from at least ten (10) per cent. of the sacks or other packages comprising the whole lot purchased, and shall be thoroughly mixed, and at least one pound of the material after mixing must be put into a jar or can, securely sealed and marked in such a way as to surely identify the sample and show by whom it was sent, without giving the name of the fertilizer or the person from whom it was purchased, and must be forwarded to the director of the Kentucky agricultural experiment station, Lexington, Kentucky. The purchaser shall also send with the sample a certificate signed by himself and witness, or by two witnesses, stating the sender has purchased the fertilizer for his own use and not for sale, and that the sample was taken in the manner prescribed in this section: Provided, however, that [if] the person, company or agent shall refuse to witness the taking of the sample, then the sample may be taken at the time of the purchase in the manner already described in the presence of two witnesses, who shall certify to the manner of taking the sample. The purchaser shall preserve the official label from one of the bags or other packages sampled, to be sent to the director after having received the report of the analysis of the sample, and at the same time he shall furnish to the director the name and address of the firm of whom the fertilizer was purchased, and the amount purchased, and any person having sent a sample for free analysis, under the provisions of this section, who shall, after having received the report of analysis of the same, refuse to furnish the required information, shall thereafter forfeit the privilege of free analysis of fertilizers under this section. But if any sample shall have been submitted for free analysis without all the requirements of this section having been complied with, the director shall inquire into the case, and may accept the sample for free analysis if he believes it is a fair sample of the fertilizer as it was delivered to the purchaser."

The evidence on behalf of the chemical company consisted of the testimony of its superintendent, and general manager, and that of the fertilizer chemist of the experiment station, and we think it shows that the provisions of the statute applicable to manufacturers of commercial fertilizer to be offered for sale in this state had been complied with by it in each of these years. The evidence of the experiment station chemist was further to the effect that the analysis made by him in these years of the fertilizer showed that it contained a higher percentage of the essential ingredients of the fertilizer than the manufacturer guaranteed it to contain.

It is however, contended by counsel for McKinney that the evidence introduced by the chemical company does not show that it complied with the statutory requirements in furnishing samples of its fertilizers to the experiment station for analysis. It will be noticed that the statute provides that the sample furnished by the fertilizer company to the experiment station shall be accompanied by an affidavit that the sample so furnished is a fair and true sample of the fertilizer which the company desires to sell in this state, and shall...