Crowley Grain Drier, Inc. v. Fontenot
| Decision Date | 12 July 1961 |
| Docket Number | No. 331,331 |
| Citation | 132 So.2d 573 |
| Parties | CROWLEY GRAIN DRIER, INC., Plaintiff-Appellant, v. Zeal FONTENOT et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Joseph S. Gueno, Jr., Crowley, for plaintiff-appellant.
McGee & Soileau, by Donald Soileau, Mamou, for defendant-appellee.
Before TATE, HOOD, and CULPEPPER, JJ.
The plaintiff filed suit for the balance alleged to be due for some seed rice. The defendants reconvened, seeking principally damages alleged to have been sustained because of the inferior quality of some other seed rice purchased from the plaintiff company. The trial court dismissed the plaintiff's demand and also rendered judgment in reconvention in favor of the defendants-appellees for a $24.75 excess paid to the plaintiff-appellant for the rice purchased; but the reconventional claim for damages was dismissed.
The plaintiff appeals from the dismissal of its suit. The defendants answer the appeal, praying chiefly for recovery of the damages sought by their reconventional demand.
On May 3, 1958 at its plant in Crowley the plaintiff company delivered 240 hundred-pound bags of Blue Bonnet seed rice to Zeal and Hadley Fontenot, rice farmers. 1 At a price of $8.25 per hundredweight, the gross retail selling price of this seed rice was $1,980.00. The plaintiff seeks recovery of this sum, less certain credits, for a net demand of $1,097.25. Essentially, the defense pleaded, and accepted by the trial court as proved, is that the 240 bags of rice delivered on May 3, 1958 were intended to be furnished without cost in exchange for some seed rice which had been previously bought and paid for, but which had proved to be of inferior quality, as a result of which the farmer-buyers were forced to replow their fields which had been planted with it and to replant them with the new rice furnished on May 3rd.
The defendant Zeal Fontenot testified flatly that he had received the additional 240 bags of rice from the plaintiff's warehouseman-assistant manager upon the specific agreement that it was to replace the earlier seed rice bought, if the latter was proved to have been defective. Under questioning by the trial court, the plaintiff's employee in question frankly admitted that he had told this defendant, at the time he returned the 58 bags with the complaint that the earlier plantings from this lot of seed had not produced a satisfactory stand, that the seed was guaranteed and that the defendants could have other seed in exchange both for the planted and unplanted portion of it, providing tests by the laboratories proved there was 'something wrong' with it. (Tr. 240--241.)
The plaintiff nevertheless contends that there was no agreement to exchange the 240 bags of seed rice delivered to the defendants on May 3rd for the seed rice earlier purchased by them which had failed to produce a good stand of early rice (as a result of which the defendants admittedly replowed their fields and replanted a new rice crop with the seed received on May 3rd, which new planting without contradiction produced a good stand of rice and ultimately a good crop). The plaintiff's position thus is that the plaintiff must pay for the 240 bags of rice furnished him on May 3, 1958, since there was no agreement to give credit for other than the 58 bags of unplanted seed rice returned that same day. (The plaintiff further contends that the admittedly poor stand produced from the earlier planting of seed rice was due to the weather and other poor planting conditions for which the plaintiff-seller cannot be held responsible.)
It will be best to view these contentions in the context of the factual background shown by this record.
The uncontradicted evidence shows the following: On February 13, 1958 the defendant-farmers 'booked' (that is, purchased for subsequent delivery) 243 hundred-weights from Lot 825 of Blue Bonnet seed rice at $8.25 per hundred-weight. They had previously inspected the germination record of this and other lots of rice and had been specified that the seed to be furnished to them from Lot 825. On April 2nd the defendants received 97 hundredweight bags of seed rice from this lot and immediately planted it. On April 24th they received another 97 bags, paying at that time the full sum of $2,004.75 due for the entire 243 bags that on February 13th they had contracted to purchase. On May 3rd the defendant Zeal Fontenot returned 58 bags of the seed rice from Lot 825 previously purchased, alleging that it was not germinating and producing a proper stand of rice; on that day, he received 240 hundredweights of Blue Bonnet seed rice from another lot which sold at the same price.
The plaintiff's manager and its assistant manager both admitted that they had guaranteed an 85% Germination of the seed rice from Lot 825 sold. Actually, after the seed from Lot 825 was returned, three out of the four tests made of the seed rice of this lot showed a considerably lower germination: the tests of the returned rice by the Louisiana and Mississippi Department of Agriculture laboratories made for both plaintiff and the defendants showed, respectively, 76.5, 75.5, and 71% Germination; as compared with a 93% Germination in a test made for the plaintiff by a private laboratory in Texas.
The defendant Zeal Fontenot testified that he specified Lot 825 because the plaintiff's records showed that this lot had a germination rate of 93%, based upon which implied warranty he purchased specifically from this lot. (Unfortunately the plaintiff had lost its germination record--which it is admitted must ordinarily be maintained for several years--, but the plaintiff's warehouseman admitted that the test of this lot made by the plaintiff on its own premises, the results of which were showed to prospective purchasers, did show a high germination rating and that the defendants specified their purchase to be from Lot 825 because of it, Tr. 221, 227.) However, both the manager and the assistant manager of the plaintiff corporation testified that they only 'guaranteed' an 85% Germination, despite any higher showing in the test.
Even though the average testing of the seed rice of Lot 825 returned to the plaintiff company showed only 79% Germination, or well below the 85% Germination which the plaintiff admitted guaranteeing to the farmers at the time of the sale, the plaintiff's manager stated that such lower germination was not a default in the warranty made at the time of sale because under State regulations there was a 7% 'tolerance' allowed. We do not find such contention to be especially impressive, since this witness frankly admitted that the farmer customers were not informed that the germination guaranteed to them was subject to such a tolerance (Tr. 314, 315); the manager as a matter of fact admitted that even the assistant manager-warehouseman, charged with the duty of dealing with customers in the sale of seed rice for the plaintiff, was 'not aware of * * * what these tolerances are' and had not been informed of them (Tr. 300).
We think that the defendants have proved by the great preponderance of the evidence that the seed rice of Lot 825 furnished to them in April actually was of inferior quality. Not only did most of the laboratory germination tests show that it was below the 'guaranteed' germination, but the testimony of the defendants and several neighboring farmers show that, despite adequate preparation and care, the seed from this lot produced a very inferior stand, irregular and spotty, with a large portion of the seed infected by a fungus growth. Seed rice from other lots planted at the same time in the neighboring fields produced satisfactory stands of rice. In addition, one neighboring farmer who had planted seed rice from Lot 825, but who did not for financial reasons replow and re-plant, produced a crop of two-thirds or less of the per-acre yield of the crop produced from seed rice of other lots.
The expert witnesses produced by the plaintiff who viewed the defendants' rice fields at the time admitted that a very inferior stand had been produced by the seed form Lot 825. Based upon a number of hypothetical suggestions, as well as their own observations, these experts concluded that the poor stand was not due to the poor germination rate...
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