Blizzard Bros. v. Growers' Canning Co.

• Decision Date: 05 July 1911
• Citation: 132 N.W. 66,152 Iowa 257
• Parties: BLIZZARD BROS., Appellants, v. GROWERS' CANNING COMPANY, and YOUNKERMAN SEED COMPANY
• Court: Iowa Supreme Court

132 N.W. 66

152 Iowa 257

BLIZZARD BROS., Appellants, v. GROWERS' CANNING COMPANY, and YOUNKERMAN SEED COMPANY

Supreme Court of Iowa, Des Moines

July 5, 1911

Appeal from Pottawattamie District Court.--HON. O. D. WHEELER Judge.

ACTION for damages resulted in the dismissal of plaintiff's petition, from which it appeals.--Affirmed in part. Reversed in part.

Judgment in favor of the Younkerman Seed Company affirmed and that for the Growers' Canning Company reversed.

J. J Stewart, for appellant.

J. J. Hess, for appellee Growers' Canning Co.

Kimball & Peterson, for appellee Younkerman Seed Co.

OPINION

LADD, J.

Blizzard Bros., a copartnership, entered into a written contract with the Growers' Canning Company "to plant and properly cultivate three acres of pumpkins, all of which he agrees to deliver to the factory of said company in good condition for canning purposes, during the cropping season of 1908; the seed to be furnished to said growers by said company at cost. All pumpkins are to be ripe and sound and fair size, for which said company agrees to pay $ 4 per ton." They called on the company for seed, but this was out, and its general manager inquired by telephone of the Younkerman Seed Company if it had the large cheese pumpkin seed, and, being informed that it had, said he would send a man up to get a pound of such seed. At his instance Blizzard Bros. then went to the seed company's place of business and inquired if a package of large cheese pumpkin seed was there for them. A clerk of the seed company responded in the affirmative, and handed them a pound package on which was written "Large cheese pumpkin seed." Some question is raised whether the purchase was by the manager individually, or by him for the company. It is enough to say, without reviewing the evidence, that he was merely acting for the company, and regardless of book entries, the sale was to the latter. Blizzard Bros. planted the seed on the three acres of ground, properly cultivated it, but the crop proved to be Connecticut pie pumpkins, with a few squash. These being unfit for canning purposes, the canning company refused to receive them, and plaintiff realized therefrom but $ 29.75. Had the seed been true to name, the several witnesses estimated that from sixteen to twenty-five tons of pumpkins per acre would have been produced, and plaintiff demanded judgment against the canning company for what they would have realized from the crop, had the seed been true to name, less the proceeds of the crop actually raised. The seed company was made a party defendant on motion of the canning company, and the latter answered, denying liability, and in a cross-petition alleged the fault, if any, to be that of the seed company, and prayed for such judgment against it as might be entered against the cross-petitioner. The seed company in its answer, among other things, pleaded that it was the general custom of dealers in seeds to sell with disclaimer of warranty as to quality, or whether true to name, and that on all packages were customarily printed the following: "Warranty. While we exercise great care to have all seeds pure and reliable and true to name, our seeds are sold without any warranty, express or...