Anderson v. Smith Frozen Foods of Idaho, Inc.

• Decision Date: 30 October 1961
• Docket Number: No. 8993,8993
• Citation: 83 Idaho 494,365 P.2d 965
• Parties: K. O. ANDERSON, Plaintiff-Respondent, v. SMITH FROZEN FOODS OF IDAHO, INC., an Idaho Corporation, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 965

365 P.2d 965

83 Idaho 494

K. O. ANDERSON, Plaintiff-Respondent, v. SMITH FROZEN FOODS OF IDAHO, INC., an Idaho Corporation, Defendant-Appellant.

No. 8993.

Supreme Court of Idaho.

Oct. 30, 1961.

Cox, Ware, Stellmon & O'Connell, Lewiston, for appellant.

Clements & Clements, Lewiston, for respondent.

SMITH, Justice.

This action is sometimes referred to as the Anderson case. The companion action, sometimes referred to as the Branom case, is Branom v. Smith Frozen Foods, 1961, 83 Idaho ----, 365 P.2d 958, wherein Branom sought recovery for his share of a crop of peas grown on land farmed by him. The alleged damage sought in both cases grew out of the same transaction; and both cases involved the principal issue, i. e., whether the transaction was governed by an oral or a written contract.

Respondent Anderson brought this action to recover the value of his share of a 1957 crop of green peas allegedly planted and grown by Duncan B. Branom, to be harvested by respondent pursuant to an oral contract with appellant. The jury found for respondent.

Respondent in his complaint alleged the oral contract entered into during March 1957, in terms as follows:

Appellant engaged respondent to harvest a crop of approximately 235 acres of Perfection green peas, to be raised during the 1957 farming season from seed furnished by appellant. Appellant had theretofore contracted the growing of this crop by Branom on land farmed by him. Respondent was to receive one-half of the crop proceeds remaining after payment of the costs of the seed and materials used to produce the crop. Appellant was to supervise the care and protection of the crop.

Respondent then alleged that appellant furnished Branom with the seed; that thereafter, contrary to the oral agreement, appellant demanded that respondent execute a promissory note in the sum of $4,280.25 payable to appellant, as representing the cost of the seed planted on Branom's land; that respondent executed the note with the understanding that it be without personal liability on his part, and be paid from gross receipts of the crop; that the seed which appellant furnished was contaminated by Austrian pea seed which rendered all the seed and the crop raised therefrom worthless for the intended purpose of the crop; that shortly after respondent commenced harvesting the crop, (after harvesting approximately 25 acres), appellant rejected the crop because of the presence of Austrian peas. Respondent then alleged that appellant breached the contract by refusing to accept respondent's performance thereof, which prevented respondent from harvesting the peas and from obtaining the value of his agreed share of the crop; that the crop was rendered worthless because appellant negligently furnished the contaminated seed. Respondent prayed for damages and cancellation of the promissory note.

Appellant, after denying the material allegations of the complaint, affirmatively alleged a written contract between it and respondent, dated March 18, 1957, whereby respondent, as grower, agreed to grow on the land farmed by Branom, subject to Branom's claims, a crop of green peas to be grown from Perfection pea seed furnished by appellant and to harvest and sell the peas to appellant as processor, and that respondent paid for the seed by his promissory note executed in appellant's favor. Appellant when alleged that Branom and respondent agreed between themselves that Branom should plant and grow the crop and respondent should harvest it, they to divide the proceeds of the crop between them.

Appellant's answer also contains ten separate defenses of which a portion of the second (appellant's 3rd in the Branom case), all of the seventh (appellant's 8th in the Branom case), and the tenth (appellant's 13th in the Branom case), were stricken by order of the court. Appellant counterclaimed for a balance allegedly owing on respondent's promissory note. Appellant also filed a cross-complaint against a third party defendant, Moscow Idaho Seed Company, Inc., from which appellant had purchased the seed peas.

Anderson's case and Branom's case were consolidated for trial. Trial resulted in a verdict for respondent in the sum of $2,902.88, and judgment in that amount from which appellant appealed.

The companion appeal, the Branom case, decides certain issues raised by appellant's specifications of error in this, the Anderson case which, for the reasons set forth in the Branom decision, we decide in respondent Anderson's favor, as follows:

Consolidation for trial of both the Branom and the Anderson cases;

Striking appellant's second defense (corresponding to appellant's 3rd in the Branom case);

Rejection of Defendant's Exhibits C and G, and comments of the trial judge relating thereto;

Apparent authority of appellant's agent Mr. Rew to enter into the oral contract on appellant's behalf with respondent.

The trial court's refusal to give appellant's requested instruction relating to the question of agency, and to give certain other requested instructions;

Substitution of the words 'an express' in place of the article 'a' in Instruction No. 25 as regards warranty of a thing sold;

The giving of certain instructions; and

Permitting V. R. Clements, one of respondent's counsel, to make a closing argument to the jury.

Appellant assigns as error the trial court's striking of appellant's seventh defense to the effect that the third party defendant, Moscow Idaho Seed Company Inc., neither expressly nor impliedly warranted the productivity of any seed it sold; also that pursuant to the written contract between appellant and respondent, under which the seed was delivered and planted and the crop produced, appellant disclaimed any warranty of the seed.

The disclaimer of warranty of the third party defendant was set forth on a tag sewn at the top of each sack of seed which Branom received from appellant. While such cannot be considered as a disclaimer of warranty insofar as appellant is concerned, nor relied upon by appellant in defense of respondent's action, nevertheless, the trial court allowed such a tag to be received in evidence. Moreover, appellant's disclaimer of warranty was contained in the alleged written contract between it and respondent attached as an exhibit to appellant's answer. The trial court allowed such contract in entirety, without qualification as to any portion thereof, to be received in evidence. Therefore, the jury was afforded due opportunity to consider such alleged disclaimer of warranty. Such assignment is without merit.

Appellant urges error of the trial court in permitting respondent to testify over objection that the only consideration for his promissory note executed in appellant's favor was 'that pea seed that was delivered to Mr. Branom.'

Appellant is not in position to urge such assignment inasmuch as the testimony of appellant's agents is not in disagreement with this portion of respondent's testimony. Mr. Howard, appellant's field man, had testified as to the dates and times leading up to, and culmination of, the transaction between appellant, on the one hand, and respondent and Branom, on the other, relating to the growing, caring for, harvesting and disposition of the crop of peas; and Mr. Mansell, appellant's manager, after having testified as to why the note was dated June 29, 1957, i. e., after the seed had been delivered to Branom's land and planted, and after unused seed had been returned, then testified on cross-examination:

'Q. The seed that was used in planting this Branom farm land, that was the only consideration for the execution of the note by Mr. Anderson, is that right? A. Yes.'

Such assignment is without merit.

Appellant urges error of the trial court in permitting respondent and his witness Branom to testify as to conversations, negotiations, arrangements, and an oral agreement, concerning the raising, harvesting and disposition of the crop of peas. Appellant contends, inasmuch as such matters took place prior to the signing of the written instrument, and relate to the same transaction, that all those matters became merged into the written instrument.

The principal issue as heretofore stated is whether the transaction was covered by an oral contract or a written contract. Testimony not only of r...