Eastern Seed Co. v. Pyle

• Decision Date: 21 November 1945
• Docket Number: No. 11531.,11531.
• Citation: Eastern Seed Co. v. Pyle, 191 S.W.2d 708 (Tex. App. 1945)
• Parties: EASTERN SEED CO. et al. v. PYLE.
• Court: Texas Court of Appeals

191 S.W.2d 708

EASTERN SEED CO. et al. v. PYLE.

No. 11531.

Court of Civil Appeals of Texas. San Antonio.

November 21, 1945.

Rehearing Denied December 19, 1945.

Appeal from District Court, San Patricio County; W. G. Gayle, Judge.

Action by Ellis Pyle against Eastern Seed Company and another to recover damages for breach of warranty in the sale of Babosa onion seed. From a judgment for plaintiff, the defendants appeal.

Reversed and rendered.

Keys, Holt & Head and John D. Hyde, all of Corpus Christi, and Baker, Botts, Andrews & Wharton, John Bullington, and Sam S. Minter, all of Houston, for appellants.

W. B. Moss and John Dawson, both of Sinton, and Walter Groce, of San Antonio, for appellee.

MURRAY, Justice.

This suit was instituted by Ellis Pyle against Eastern Seed Company seeking to recover the sum of $7,800, as damages for breach of warranty in the sale of Babosa onion seed.

The cause was submitted to a jury and, in keeping with the jury's answers, judgment was rendered in Pyle's favor against Eastern Seed Company and G. Curtis Clark, in the sum of $5,200.

From this judgment Eastern Seed Company and G. Curtis Clark have prosecuted this appeal.

Appellants first contend that they should have been given an instructed verdict against appellee, Ellis Pyle. The evidence shows that Ellis Pyle entered into a written contract with Eastern Seed Company for the purchase of fifty pounds of Babosa onion seed, which reads in part as follows:

              "Order Sheet
                         "Eastern Seed Company
                                    "Date ......9-6-43
                "Sold to Ellis Pyle
                -------------------------------------------
                              "Terms: Cash
                "Payable in Corpus Christi, F. O. B. Corpus
                    Christi
                -------------------------------------------
                

"Notice

"All sales subject to loss or damage by fire, shortage or failure of crops, and contingencies beyond control. Eastern Seed Company gives no warranty, express or implied, as to description, purity, productivity, or any other matter of any seed we may send out, and we will not be in any manner responsible for the crop.

---------------------------------------------
                Quantity         Article        Price     Per
                50 pounds   Babosa Onion Seed   Market
                  "Subject to our ability to obtain
                  "Price quote lots for your approval
                ---------------------------------------------
                

"This order is taken `subject to confirmation' by Eastern Seed Company and in case of crop shortage is subject to pro rata delivery on exactly the same basis that Eastern Seed Company receives from their grower or supplier.

"Signature of Buyer: (Signed) Ellis Pyle.

"Signature of Salesman: (Signed) Joe Kirkpatrick" Later the seed were delivered to appellee and planted by him on fifty-two acres of land. The crop was properly cultivated but failed to produce Babosa onions. The onions produced were "Bottle Necks" or "Blue Whistlers," being terms applied to any variety of onions that produces a prolific top growth and no bulb. The jury found, in effect, that the onion seed delivered to appellee were not of the Babosa variety.

The order which was signed by appellee and a representative of appellants contained what is known as a non-warranty clause. The question here presented is, can appellee recover on the warranty claimed by him, to the effect that these seed were of the Babosa variety in the face of the written provision in the contract, that "Eastern Seed Company gives no warranty, express or implied, as to description, purity, productivity, or any other matter of any seed we may send out, and we will not be in any manner responsible for the crop"? We think not. Appellee bought onion seed, he received onion seed, which were not warranted as to description, purity and productivity. The seed were described as Babosa onion seed, but were expressly not warranted to be as described. The parties having signed a written contract are bound by its provisions. White, Ward & Erwin v. Hager, 112 Tex. 516, 248 S.W. 319.

It has been held that where the written contract contains an express warranty or disclaimer of warranty,...