Avery v. Associated Seed Growers, Inc.

• Decision Date: 09 January 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Jean AVERY, as Administratrix of the Estate of R. L. Avery, deceased, and Matt Carroll, Plaintiffs and Appellants, v. ASSOCIATED SEED GROWERS, INC., a corporation, Defendant, Cross-Defendant and Respondent, Leonard Henderson, Defendant, Cross-Complainant, Respondent and Appellant. Civ. 20046.

Page 625

27 Cal.Rptr. 625

211 Cal.App.2d 613

Jean AVERY, as Administratrix of the Estate of R. L. Avery, deceased, and Matt Carroll, Plaintiffs and Appellants, v. ASSOCIATED SEED GROWERS, INC., a corporation, Defendant, Cross-Defendant and Respondent, Leonard Henderson, Defendant, Cross-Complainant, Respondent and Appellant.

Civ. 20046.

District Court of Appeal, First District, Division 1, California.

Jan. 9, 1963.

As Corrected on Denial of Rehearing Jan. 30, 1963.

Hearing Denied March 6, 1963.

Alfred Nelson, Oakland, for appellants R. L. Avery and Matt Carroll.

Spruance, Simonian & Pretzer, San Leandro, for appellant Leonard Henderson.

Knox, Goforth & Ricksen and Calvin T. Goforth, Oakland, for respondent Associated Seed Growers, Inc.

Pillsbury, Madison & Sutro, Carlisle B. Lane, Thomas E. Haven, San Francisco, amici curiae in support of the contentions of respondent.

SULLIVAN, Justice.

Plaintiffs, R. L. Avery and Matt Carroll, hereafter collectively referred to as Avery, ¹ and cross-complainant Leonard Henderson, hereafter referred to as Henderson, separately appealed from a judgment entered on February 10, 1961, vacating and setting aside a previous judgment entered on November 23, 1960, in their favor and ordering that said parties take nothing by their complaint and cross-complaint respectively. ²

In 1957, the plaintiffs, who were tomato farmers, purchased from the defendants Espino and Henderson, who were nurserymen, certain tomato plants with which to plant thirty acres of land in San Joaquin County. Although plaintiffs ordered only Improved Pearson tomato plants, it subsequently developed that on 11 1/2 acres of the land, the tomatoes produced were a mixture of Improved Pearsons and a distinct variety known as Pear tomatoes. All of the plants sold by Henderson to the plaintiffs came from certain identified seed beds which he had planted with seed purchased from the Delta Supply Company. The packages of seeds were labelled 'Improved Pearson' and while some of the seed was sold to Delta by the Langen Seed Co. and some by the Associated Seed Growers, Inc., the heaviest concentration of pear-shaped tomatoes came from the beds in which Henderson had planted the seed of the latter company.

Plaintiffs' second amended complaint, on which the cause was tried, sets forth three separately stated causes of action. The first cause of action against the defendants Espino ³ and Henderson sought damages for breach of warranty in the sum of $3,151.92. The second cause of action against the defendants Bert Langen, ⁴ Richard Bajado and Associated Seed Growers, Inc., hereafter referred to as Asgrow, sought damages in the same amount because of the negligence of such defendants in supplying mixed 'Pearson' and 'Pear' tomato seeds to the defendants Espino and Henderson. The third cause of action against the same defendants named in the second sought the same amount of damages because of the special injury resulting to plaintiffs from the mislabelled seed containers predicated upon sections 912, 913 and 919 of the Agricultural Code.

Henderson answered the above second amended complaint and also filed a cross-complaint against Asgrow, Langen and Bajado. ⁵ Such cross-complaint set forth four separately stated causes of action seeking damages in the sum of $6,849.68. The first cause of action was based on the alleged false representations that the seeds involved would produce Improved Pearson tomatoes, said representations having been allegedly made by the defendants 'with no reasonable ground for believing them to be true.' The second cause was asserted on the same basis except that the alleged representations 'were not warranted by the information and knowledge of said defendants * * *.' The third cause of action was for breach of express and implied warranty. The fourth cause of action was for special injury resulting from the mislabelling of the seed and, like plaintiffs' cause above-mentioned, was based on the same sections of the Agricultural Code.

Henderson's answer, while admitting that Avery purchased the tomato plants, generally speaking, denied all of the material allegations of the second amended complaint and, among other things, alleged as an affirmative defense that Avery had failed to give notice of breach of warranty in compliance with section 1769 of the Civil Code. Asgrow's answer to the second amended complaint denied all liability and as an affirmative defense alleged that, by the language of the label, its liability in any event was limited to the price of the seed. Asgrow's answer to Henderson's cross-complaint was to the same effect.

The trial court found, so far as is pertinent here, ⁶ that Avery purchased from Henderson tomato plants which the former requested and the latter warranted to be all 'Improved Pearsons'; that, as we have stated above, they were not all Pearsons but were Pearsons mixed with Pear tomato plants, as a result of which Avery was damaged in the sum of $3,151.92; that none of the seed sold by Langen to Henderson was of the Pear tomato variety; that Asgrow did not sell any seed directly to Henderson but did sell it to Delta Supply Company, a corporation, which in turn and through its employee, Bajado, sold the seed to Henderson; that, in substance, when the seed was delivered to Henderson it was in the same unbroken containers in which it left Asgrow; that the seed contained a mixture of Pearson tomato seed and Pear tomato seed; that all of the packaging and sealing of the seed was done by Asgrow and all of the sealed packages had labels affixed thereto stating that the whole thereof was only Pearson tomatoes; that in fact from one-third to one-half of the contents were Pear tomatoes in some of the sealed packages; that Asgrow knew that the tomato seed bought by Henderson would be planted in a nursery for the purpose of selling to farmers like Avery the tomato plants grown therefrom; that Henderson at no time ordered seed mixed as above stated; that Asgrow was careless in the packaging, supplying and sealing of the packaged seed in that when it was delivered by Asgrow to Delta Supply Company, some of the seed in some of the packages, to wit, one-third thereof, was not Improved Pearson tomato seed but Pear tomato seed; that, on the basis of the above-mentioned sections of the Agricultural Code, Avery was specially injured and the selling and delivering of tomato seeds in containers not disclosing that said seed was mixed as aforesaid was a nuisance specially injurious to Avery; that it was true that the labels contained provisions limiting warranty liability to the price of the seeds; and that it was not true that Avery had failed to give notice of breach of warranty to Henderson.

The trial court, generally speaking, made findings favorable to Henderson in connection with the latter's cross-complaint; found that the various transactions occurred as stated in the previous findings; that Asgrow was aware that its seed might be purchased by individuals engaged in planting seeds to produce tomato plants for commercial purposes; that said seed was sold within California for sowing purposes; that when Henderson sold the young plants to Avery he was unaware and had no reasonable way of ascertaining that they were other than the Improved Pearson type; that Henderson suffered damage in the sum of $6,849.68; that there was no privity of contract between Avery and Asgrow or between Henderson and Asgrow.

The court concluded that 'the tomato seeds sold to Leonard Henderson were at the time of sale a public nuisance'; that 'as a proximate result of the public nuisance created and maintained by' Asgrow, Henderson suffered damages and was entitled to judgment against Asgrow for $6,849.68 and in addition thereto the sum of $3,151.92 or any other sum required to be paid by Henderson to Avery; that Avery was entitled to judgment against both Henderson and Asgrow in the sum of $3,151.92; and rendered judgment accordingly.

The above judgment was entered on November 23, 1960. On the same day, Asgrow filed its notice of intention to move for a new trial, specifying therein four statutory grounds. (Code Civ.Proc. § 657, subds. 5, 6 and 7.) On January 18, 1961, the court made its minute order 'granting' the above motion, vacating the judgment and ordering judgment in favor of the defendants on Avery's complaint and in favor of Asgrow on Henderson's cross-complaint. ⁷ Such new judgment was filed on February 9, 1961, and entered on February 10, 1961. On March 14, 1961, Avery, and on March 16, 1961, Henderson, filed a notice of appeal therefrom. On March 30, 1961, the court filed, nunc pro tunc as of February 3, 1961, new findings of fact and conclusions of law. The second set of findings were substantially the same as the first with the following exceptions: In the new findings of fact, the court found that it was not true that the selling and delivering of the seed was a nuisance specially injurious either to Avery on their second-amended complaint or Henderson on his cross-complaint; and that it was not true that either Avery or Henderson were damaged in any amount. In the new conclusions of law, the court merely concluded that Henderson was entitled to judgment against Avery and that Asgrow was entitled to judgment against Avery (on the complaint) and Henderson (on the cross-complaint), omitting its conclusion previously made that the seeds were a public nuisance and the Henderson suffered damages as a proximate result thereof.

Henderson, apparently because the first judgment was in general favorable to him, at no time made either a motion for new trial or any other motion attacking the first judgment in the trial court.

Avery's contentions on their appeal may be summarized as follows: (1) That the relief granted Henderson under section 662 of the Code of Civil Procedure is void because Henderson did not move for a new trial and 'is also void for all the reasons making the...