Bleyhl v. Tea Garden Products Co.

• Decision Date: 06 April 1948
• Docket Number: 30448.
• Citation: 191 P.2d 851,30 Wn.2d 447
• Parties: BLEYHL et al. v. TEA GARDEN PRODUCTS CO.
• Court: Washington Supreme Court

191 P.2d 851

30 Wn.2d 447

BLEYHL et al. v. TEA GARDEN PRODUCTS CO.

No. 30448.

Supreme Court of Washington

April 6, 1948

Department 2

Action by Alex Bleyhl and Elnora Bleyhl, husband and wife, and Carl Bleyhl against Tea Garden Products Company, a corporation, to recover for damages alleged to have resulted from defendant's breach of an implied warranty as to the fitness of a supply of grapevine roots sold by defendant to plaintiffs.From a judgment for the plaintiffs, the defendant appeals.

Judgment affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, Judge.

Brown & Hawkins, of Yakima, for appellant.

Walter V. Swanson, of Yakima, for respondents.

STEINERT Justice.

Plaintiffs brought suit seeking to recover damages alleged to have resulted from defendant's breach of implied warranty as to fitness of a supply of grapevine roots which defendant had previously sold and delivered to plaintiffs.The cause was tried to a jury, which returned a verdict in plaintiffs' favor.The court entered judgment on the verdict.Defendant appealed.

RespondentsAlex Bleyhl and Carl Bleyhl are brothers.Together, they own a number of ranches in Yakima county, upon which they conduct various kinds of farming operations.They also are jointly interested in several business enterprises, among which are two grain and feed stores in the Yakima valley, one located in Grandview and the other in Sunnyside.Appellant, Tea Garden Products Co., is a corporation engaged in the business of processing grape and other fruit juices and making jams and jellies, in this state.

In the summer of 1945, appellant decided to establish in Grandview a plant for processing grapes, apples, and other fruits.

In order to be assured of a sufficient supply of grapes for its processing plant on and after its completion in 1947appellant contracted with many landowners in the Yakima valley for their prospective grape acreage.Under those contracts, which were in writing, the respective landowners agreed to plant in 1946 a certain number of acres to Concord grapes, on lands described in the contracts, and thereafter to sell to appellant their entire crops of such grapes subject to certain quality requirements.The landowners further agreed to prepare and plant their vineyards on premises described in the contracts, 'using vines satisfactory' to appellant.

At that period of time, Concord grapevine roots, or 'grape roots' as they were termed at the trial, used for planting purposes, were very scarce and, in order to obtain the amount thereof required by its contracts with the various landowners, appellant entered into negotiations and concluded arrangements therefor with several nurseries in the east, middle west, and south.Upon receipt of shipments of such grape roots from the nurseries, appellant sold and delivered to the landowners the supply thereof required by them in planting their specified acreage.

In the early part of 1946, appellant and respondents entered into a written contract, of the nature generally described above wherein respondents agreed to plant in that year forty-four acres to Concord grapes, using vines satisfactory to appellant, and thereafter, during the period of 1948-1952, to sell to appellant their entire crops of such grapes, which appellant agreed to purchase, provided the fruit met the requirements of quality and condition.

Pursuant to that contract and in order to carry out its terms, respondents entered into another, and separate, contract with appellant, evidenced by a purchase order, whereby respondents were to purchase from appellant, and the latter was to sell and deliver to respondent, 25,500 Concord grapevine roots, one year old, of No. 1 quality, at the price of eight cents each, to be delivered about April 5th of that year.

On April 1, 1946, there arrived in Grandview a refrigerator freight car containing a shipment of grapevine roots which appellant had purchased from a nursery in Arkansas, and from which appellant intended to, and did, supply such roots to the local landowners, including respondents, for whose acreage appellant had previously contracted.

On April 3, 1946, the freight car was opended in the presence of Mr. E. V. Wyant, field man, purchasing agent, and salesman for appellant.When the car was opened 'A big gush of steam' issued from within, rolling out in clouds for about a half-hour, and continuing for some time thereafter in lesser amounts.Upon inspection, it was discovered that the car contained wet straw, approximately six inches deep, covering the grape roots.The straw was begrimed with a white mold, an inch or so thick.The intensity of the heat in the straw was such that, according to the testimony of two witnesses, they could not hold their hands in it for more than a very short time.A thermometer, placed in the straw, registered its full maximum reading of 110 degrees.These conditions were unknown to respondents at the time of the arrival and opening of the car, and did not become known to them until sometime thereafter.

An expert witness, who was manager of a grape processing plant in Grandview, was called by the respondents and testified at the trial that he saw the condition of the freight car and the roots at the time the car was opened.He stated that, in his opinion, the heating of the car would have the effect of weakening the roots to such an extent that, when put in the ground, they would not make 'a thrifty growth.'He further testified that, in his opinion, the roots in the freight car were not in a healthy condition; that they had poor root growth and poor top growth; that they did not appear to him to be No. 1 roots; and that they were improperly packed for shipping:

The freight car was unloaded shortly after it had been opened, and the grape roots were then placed in the railroad company's freight depot.On the following day, the roots were distributed by appellant's representatives to various landowners who had contracted therefor.Respondents' quota of grape roots was accepted and hauled away by their employee, Mr. Ervin Erickson, who had worked for a number of years for a nursery and in that time had handled grape roots to some, though not a great, extent.

Mr. Erickson testified that, when he accepted delivery of the first load of grape roots, they did not 'look very good' to him, and that he took four bundles of them back to the freight depot.He had considerable difficulty in getting any of appellant's representatives to examine these bundles, but finally prevailed upon Mr. Wyant to look at them.Wyant cut into some of the roots with a pen knife, and two of the bundles he pronounced 'doubtful,' but said that the other two were 'all right.'The two doubtful bundles were replaced with two others in the next load and were accepted by Erickson on the assurances given by Wyant.

Erickson transported respondents' quota of roots to a cold storage plant maintained by respondents and there stored them in three-foot piles on scows, or flats, with the root ends extending outward.These piles were then covered with shingle tow and kept moist.

During the latter part of April, respondents commenced planting the grape roots on two of their tracts of land as agreed in their contract with appellant.The planting was completed approximately twelve days later, between the 6th and 10th days of May, 1946.Prior to planting, a few of the roots were trimmed by respondentAlex Bleyhl and the rest by a woman who worked for respondents in their storage plant.

The planted roots were watered and cultivated, but most of them failed to grow.Although Mr. Wyant, heretofore mentioned, testified by deposition that in June, 1946, one of the tracts planted by respondents had an 80% growth of roots, the evidence showed that later on in the summer the number of healthy plants was considerably less than this stated percentage.Mr. Erickson testified that on one tract less than 5% of the plants were 'real strong,' 20% or 25% of them were 'spindling ones,' and the rest failed to grow.RespondentCarl Bleyhl testified that about 15% of the plants were good, healthy, fullgrown plants.RespondentAlex Bleyhl testified that approximately 10% or 20% of the plants grew, but presented a spotted appearance in the rows.The normal failure of grape roots is about 15% or 20%.

During the latter part of June or the first of July, 1946, Mr. Wyant, at respondents' request, visited one of their tracts where the grape roots had been planted.At that time, according to Mr. Erickson's testimony, Wyant inspected the field and some of the plants and then stated to respondentCarl Bleyhl: 'It don't look very good.'Mr. Bleyhl then asked Wyant whether respondents should plow up the field, to which Wyant replied that he had no authority in that respect, but that 'there would be a man over next week.'However, the 'man' referred to by Mr. Wyant never came.

In the early part of July, 1946, respondents first learned of the condition of the freight car in which the grape roots had been shipped, arriving in Grandview on April 1.Thereafter, respondents made inquiries and investigation with the view of determining why the roots had failed to grow.

On October 3, 1946, respondents notified appellant that they claimed a breach of warranty of fitness with respect to the grape roots.Appellant denied liability.This suit was thereupon instituted.

At the trial and upon the conclusion of respondents' evidence appellant challenged its sufficiency and later moved for a directed verdict.These motions were denied by the court, and the cause was submitted to the jury, which rendered a verdict in respondents' favor.Thereafter, appellant moved for judgment notwithstanding the verdict and this was...