Associated Seed Growers, Inc. v. Johnson

• Citation: 227 Ark. 235,297 S.W.2d 934
• Decision Date: 21 January 1957
• Docket Number: No. 5-1114,5-1114
• Parties: ASSOCIATED SEED GROWERS, Inc., Appellant, v. Marshall JOHNSON et al., Appellees.
• Court: Supreme Court of Arkansas

Page 934

297 S.W.2d 934

227 Ark. 235

ASSOCIATED SEED GROWERS, Inc., Appellant, v. Marshall JOHNSON et al., Appellees.

No. 5-1114.

Supreme Court of Arkansas.

Jan. 21, 1957.

Rehearing Denied Feb. 18, 1957.

Warner, Warner & Ragon, Ft. Smith, for appellant.

Batchelor & Batchelor, and Ralph W. Robinson, Van Buren, for appellee.

ROBINSON, Justice.

The appellant, Associated Seed Growers, Inc., is engaged in producing and selling various kinds of seeds. The appellees purchased Logan Bean seed from appellant; the beans produced from such seed were defective, and, therefore, unsalable. Appellees filed this suit against the seed company, alleging the beans were unsalable because they were afflicted with a disease known as 'common bean mosaic'; that the seed company had given express and implied warranties that the seeds were resistant to such a disease, which is seed borne. This suit is based on a breach of such alleged warranties. There was a verdict and judgment for appellees in the sum of $2,500.

The evidence was sufficient to take the case to the jury on the question of whether the beans were defective due to common bean mosaic. Appellant produced weighty evidence to the effect that the unsalable condition of the beans was not due to that disease, but there is substantial evidence to the contrary. It is not disputed that the beans were unsalable. Marshall Johnson, Harold Ballentine and Boyce Wofford qualified as experts, through many years of experience by producing and dealing in beans, testified that in their opinion the beans were unsalable because they were afflicted with common bean mosaic. Appellant questions the qualifications of the witnesses to testify as experts. True, they were not trained pathologists, but they had long years of experience with beans, and a witness may qualify as an expert by experience. The court said, in Nixon v. Fulkerson, 128 Ark. 172, 193 S.W. 500: 'The rule with reference to experts is that: The witness must be 'possessed of such experience, skill, or science in the particular subject or inquiry as entitles his opinion to pass for scientific truth. The knowledge contemplated by the rules is knowledge acquired either from actual study or long experience in the particular field toward which the inquiry is directed.''

The principal issue on appeal is whether the seed company gave an express or implied warranty with regard to the fitness of the seed. Appellee, Johnson, acting for himself and the other appellees herein bought the seed from appellant. Johnson had one of appellant's catalogues; he testified that he studied the catalogue and referred to it in ordering seed. Furthermore, it was stipulated that Johnson used the catalogue in buying seed from appellant. The catalogue described the seed as being resistant to common bean mosaic.

Ark.Stats. § 68-1415 provides: 'Implied warranty of quality or fitness.--Subject to the provisions of this act [§§ 68-1401-68-1480] and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'

Ark.Stats. § 68-1412 provides: 'Express warranty defined.--Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. * * *'

Appellant does not insist that the statement in the catalogue to the effect that the beans were resistant to common bean mosaic, coupled with the statutes set out above, would not be sufficient to constitute an express or implied warranty if that were the entire picture. But, appellant says that in making the sale of the beans, it limited the warranty or disclaimed the warranty. This brings us to a consideration of the facts surrounding the actual sale. The transaction came about in this manner: Johnson called Henry Hicks, the manager of appellant's Memphis branch, and ordered the Logan Bean seed. Hicks told him that they did not have the seed at Memphis, but thought he might supply them out of their branch at Omaha, Nebraska. After talking to Johnson, Hicks ascertained that the seed was available at Omaha and wired Johnson that they would be shipped. The telegram stated: 'Shipping Today From Omaha Via Truck Twenty Bags Logan, Thanks.' On the same day that the telegram was sent, Hicks wrote to Johnson as follows: 'Following our long distance telephone conversation this morning we found that Logan beans were available at our Omaha warehouse and wired you that we were instructing immediate shipment via truck freight. Accordingly we have entered your order as follows: 2400 lbs. Beans, Logan, f. o. b., Omaha, Nebraska, .29 1/2 per lb., volume discount 10% * * *' In the upper right hand corner of the letterhead, in small type, was printed the following: 'We warrant that the seeds, bulbs and plants w...