Hartman v. Barnes Grain & Feed Co., 21999.

• Decision Date: 03 February 1930
• Docket Number: 21999.
• Citation: 155 Wash. 394,284 P. 754
• Court: Washington Supreme Court
• Parties: HARTMAN et al. v. BARNES GRAIN & FEED CO.

284 P. 754

155 Wash. 394

HARTMAN et al. v. BARNES GRAIN & FEED CO.

No. 21999.

Supreme Court of Washington

February 3, 1930

Department 1.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by John G. Hartman and another against the Barnes Grain &amp Feed Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Joseph C. Cheney, of Yakima, and Elwood Hutcheson of Seattle, for appellant.

Snively & Bounds, of Yakima, for respondents.

PARKER J.

The plaintiffs, Hartman and Kunkel, who at the time in question were copartners operating their farm in Yakima county commenced this action in the superior court for that county seeking recovery of damages which they claim to have suffered as the result of the defendant feed company's selling and delivering to them a quantity of seed for planting upon their farm, which the feed company represented and warranted to them to be good alfalfa seed, and which proved, after being planted by them upon their farm, not to be alfalfa seed, but seed which produced a worthless crop known as 'yellow trefoil.' The feed company, in addition to denials other than that it sold alfalfa seed to Hartman and Kunkel, as an affirmative defense, alleged that at the time of the sale it 'specifically refused to warrant said seed, expressly or impliedly, as to name, description, variety, purity or germinative qualities, and that said Hartman, upon purchasing said seed, purchased it upon the condition that the defendant would not warrant said seed, and with full understanding to that effect.' A trial upon the merits in the superior court sitting with a jury resulted in a verdict awarding to Hartman and Kunkel damages against the feed company in the sum of $700. Upon disposing of the feed company's motion for a new trial, the trial judge, being of the opinion that the verdict was excessive, required Hartman and Kunkel to consent to a reduced award of $407, or suffer a new trial. They so consenting, final judgment was accordingly rendered in their favor against the feed company, from which it has appealed to this court.

The feed company has, since some time prior to the times here in question, been a retail dealer in feed and seed in the city of Yakima. Hartman and Kunkel, since some time prior to the times in question, have, as copartners, owned and operated a farm in Yakima county. In March, 1927, Hartman went to the feed company's place of business to buy a quantity of alfalfa seed to plant upon their farm, and made their wants in that behalf known to Pitcher, vice president of the feed company, who then waited upon Hartman and made to him the seed sale here in question. A version of what was then said and done between Hartman and Pitcher is given in the testimony of Hartman, as follows:

'Q. Now, in 1927, March, did you attempt to buy alfalfa seed? A. Yes.

'Q. Did you go to Barnes Grain & Feed Co.? A. Yes, sir.

'Q. Who did you see there? A. Mr. Pitcher.

'Q. What did he say to you and what did you say to him? A. I asked him for alfalfa seed, and he said, 'There is some in the bin,' and I looked at it, and I asked him if it was any good, it looked kind of small to me; I thought it was seed raised on poor ground and made small seed, and that made me think it wasn't any good.

'Q. What did you say, not what you thought? A. I said, 'Is it any good?' And he said, 'Just as good as any.' I says, 'Well, if it's good seed I'll take a sack,' and I asked what the sack weighed. He said, 'Oh, from a hundred to a hundred and fifty pounds.' I says, 'I will take a big sack,' and he took the sack with the rest of the stuff I bought and threw it on my truck.

'Q. Did he ask you where the ranch was, where it was going? A. Yes, we talked a

little while about where our ranch was, and I told him all about it. The old Eschbach place up in the Ahtanum.

'Q. Did he say whether he knew it or not? A. He said he knew the place.'

Pitcher, by his testimony, denied the making of any statements to Hartman as to the kind or quality of the seed, and he also testified that he then expressly disclaimed to Hartman, in behalf of the feed company, any warranty of the seed. Pitcher then gave to Hartman a sales slip evidencing the sale and payment therefor. There was no printing or writing on the sales slip evidencing any disclaimer of warranty as to kind or quality of the seed. Nor, according to the testimony of Hartman, was there any printing or writing on or attached to the sack evidencing any disclaimer of warranty as to kind or quality of the seed therein. There was printed on the sack these words: 'Hardy Utah Beehive Brand Alfalfa, Origin Guaranteed. J. G. Peppard Seed Co., Kansas City, Missouri, U.S. A.' There was also some other printed matter on the sack stating the manner and place of the origin of the seed.

Pitcher testified that there was attached to the sack a tag on which was printed the following: 'Barnes Grain & Feed Co. gives no warranty, express or implied, as to description, quality, productiveness or any other matter, of any seeds it sends out, and will be in no way responsible for the crop.' Hartman testified positively to the contrary; that is, that there was no such tag or printing attached to or upon the sack. Two or three days later another smaller quantity of the same kind of seed, contained in the same kind of a sack, about half full, was purchased by Hartman from the feed company. This and the prior purchase were, in effect, one transaction in so far as evidence of guaranty and disclaimer of guaranty as to kind and quality are concerned.

There was introduced in behalf of the feed company evidence tending to show that there was an established custom in Yakima county and the state of Washington, known generally in Yakima county, that seed dealers did not warrant seed sold by them as to kind or quality. The purpose of this evidence was to lend support to Pitcher's testimony as to express disclaimer of warranty, and also as tending to negative any implied warranty as to kind or quality of the seed on the part of the feed company. Hartman and Kunkel planted the seed on their farm under such circumstances as to the nature of the soil, preparation thereof, and aftercare by irrigation that they should and would have, in all probability, produced thereby a good crop of alfalfa if the seed had been good alfalfa seed; but it produced a worthless...