Hayman v. Shoemake

• Decision Date: 01 May 1962
• Citation: 203 Cal.App.2d 140,21 Cal.Rptr. 519
• Court: California Court of Appeals Court of Appeals
• Parties: Louis HAYMAN and George Covert, Plaintiffs, v. A. C. SHOEMAKE and Henry Gnesa, et al., Defendants. A. C. SHOEMAKE, Walter Gnesa, Francis Gnesa and Henry Gnesa, Defendants, Cross-Complainants and Respondents, v. Dick CAREY, F. H. Woodruff and Son, Inc., Defendants, Cross-Defendants and Appellants, Dompe Supply Company, Cross-Defendant. Civ. 86.

Page 519

21 Cal.Rptr. 519

203 Cal.App.2d 140

Louis HAYMAN and George Covert, Plaintiffs, v. A. C. SHOEMAKE and Henry Gnesa, et al., Defendants.

A. C. SHOEMAKE, Walter Gnesa, Francis Gnesa and Henry Gnesa, Defendants, Cross-Complainants and Respondents, v. Dick CAREY, F. H. Woodruff and Son, Inc., Defendants, Cross-Defendants and Appellants, Dompe Supply Company, Cross-Defendant.

Civ. 86.

District Court of Appeal, Fifth District, California.

May 1, 1962.

Sedgwick, Detert, Moran & Arnold, San Francisco, Gant & Gant, Modesto, Scott Conley, San Francisco, Wilbur Legg, Chicago, Ill., for appellants.

Zeff, Halley & Price, William Zeff, Modesto, for respondents.

CONLEY, Presiding Justice.

The cross-defendants, Dick Carey and F. H. Woodruff & Son, Inc., appeal from a judgment in favor of the cross-complainants, A. C. Shoemake, Walter Gensa, Francis Gnesa and Henry Gnesa, for $93,523.68 based upon a sale of onion seed.

The plaintiffs, Louis Hayman and George Covert, purchased from the defendants and cross-complainants an interest in the field of onions grown from the seed and sued the defendants on their express warranty that the onions were Asgrow Y-50's, a particular variety which had previously produced excellent crops in the San Joaquin Valley. The cause was tried without a jury, and the court awarded plaintiffs, as against defendants, the sum of $66,182.68. No appeal was taken from the judgment for plaintiffs against the defendants, and it has become final. The amount awarded plaintiffs was in turn included in the $93,523.68 awarded the cross-complainants. One of the cross-defendants, the Dompe Supply Company, was awarded judgment in the court below, and it has secured a dismissal of the appeal as to it. (Hayman v. Shoemake, 199 A.C.A. 829, 18 Cal.Rptr. 916.)

The two main questions raised on the appeal from the judgment on the cross-complaint are whether cross-defendants are liable on a theory of warranty, and if so, whether the damages awarded are proper.

In 1956 and 1957, A. C. Shoemake and three Gnesa brothers constituted a general farming partnership operating in the Patterson area of Stanislaus County. Henry Gnesa was in charge of the agricultural operations, while Shoemake handled business, accounting and labor problems. For many years George Covert and Louis Hayman had carried on a produce business in the area, dealing largely in onions and tomatoes. The Dompe Supply Company (hereinafter called Dompe) was a local supplier of seeds, insecticides, fertilizers and agricultural chemicals. F. H. Woodruff & Son, Inc., a corporation (hereinafter called Woodruff), was engaged in the seed business in California and other western states. The cross-defendant, Dick Carey, was a sales representative of Woodruff for the territory in California from Sacramento to the Imperial Valley.

Asgrow Y-50 is a hybrid onion seed which was originated and sold only by Asgrow Seed Company, Inc. If planted directly in the ground in the Patterson area in the month of November, this seed would produce medium-sized, yellow, globe-shaped onions, ready for harvest in the following June, with only a small amount of bolting, or early seeding. This particular seed was produced for sale in the year 1953, and the first commercial crops grown from it in the San Joaquin Valley were planted in the fall of 1954 and harvested in 1955. The Asgrow Company was not able to produce any Y-50 seed in 1956.

In the summer of 1956 Shoemake and Gnesa desired to plant 85.6 acres of Asgrow Y-50 onions; Henry Gnesa personally had complete charge of the negotiations for the purchase of the seed. He was told by a Dompe employee that Asgrow was completely out of Y-50 seed, but that he would inquire elsewhere for seed of the same type; he telephoned to one Whikehart, Woodruff's Sacramento sales manager, saying that Asgrow had no available Y-50 seed and that a customer wanted to secure something as good. Whikehart instructed Carey to call on Dompe and told him that Dompe might want him to talk with Dompe's prospective purchaser. Carey saw Dompe, who discussed the seed with him and asked him to see Gnesa about getting Woodruff and Gnesa together and, '* * * to make arrangements on what that covers.' Carey called on Gnesa and represented to him that the Woodruff onion seed had the same characteristics as Asgrow's Y-50 seed. Mr. Carey testified as follows:

'Q. Then, your superior told you to represent this to have the same characteristics as the Y50, is that correct?

'A. That is correct, yes, sir.

* * *

* * *

'Q. In fact, Mr. Whikehart had told you, had he not, that there was a call for Y50 onions down in the Patterson area, to go down there and sell some Early Yellow Hybrid Globe?

'A. Yes, sir.

'Q. And he intended you to make those sales to growers or brokers or anyone who would buy them from you on that basis, isn't that correct?

'A. That is correct.

'Q. And he told you it had the same qualities and the same characteristics as the Y50 onion?

'A. He said it was the same kind of an onion.'

Carey had never seen the Early Yellow Globe Hybrid onion grown in this part of the country, and he had no personal knowledge as a basis for making a comparison of the onion with the Y-50. He testified that in his conversation with Henry Gnesa he followed the instructions given him by Mr. Whikehart in representing the onion and that Mr. Gnesa took his word for it.

Carey testified as follows:

'Q. May I suggest, Mr. Carey, that at the time you took the contract and wrote the order, you had some reservation in your mind about whether this was the kind of onion which the people had wanted and which you had sold?

'A. That is correct.

* * *

* * *

'Q. Mr. Carey, you, I believe, testified in your Direct Examination that you told Henry Gnesa that was the same kind of onion as the Y50.

'A. I did say that, yes, sir. I said it was the same kind.

'Q. And you said that you were reading to him from the catalog at the time?

'A. Yes.

'Q. Now, had you ever compared the descriptive literature in the catalog of the Woodruff Company with that of the Associated Seed Company?

'A. I never had, no.

'Q. Now, never having made a comparison on the basis of the descriptions of Woodruff as against the Asgrow product, how could you make that statement to us?

'A. I did from my instructions from my superior, the sales manager.

* * *

* * *

'Q. Now, you testified this morning that you were concerned about whether the variety of seed which you had sold was the right seed for this area, isn't that correct?

'A. That is correct.

'Q. Now, when you say you asked Harold Whikehart to find out if he had any further information, how did you do that?

'A. I wrote a report and attached it to the contract.

'Q. To this form of agreement?

'A. Yes.

'MR. ZEFF: Q. Will you produce it please?'

The report from Carey to Whikehart is most illuminating. It reads:

'Harold Whikehart----

8/17/56

'Enclosed--contract with Dompe Supply Co. The grower is Henry Gnesa--who I saw, and convinced him our hybrid Ea. Yellow Globe onion is the same as Y-50--he was quoted $7.75 lb. on Y-50 from Asgrow! So I told him Dompe would meet the price or we would--so if 8.45 less 20% could be sliced down a little it would give Dompe a better profit----

8.45 7.75

1.690 6.76

----- ----

6.76 .99 profit

'I guess it would be O. K.

'Now--believe we should find out from Milford--if they think our onion would be equal at the same planting time--(Fall) etc. as Y-50 of Asgrows?? To protect us, because we have Gnesa boys using our carrot--watermelon etc., & pepper--and we do not want to get in wrong with the wrong onion!! I have the description of our hybrid Ea-Yellow Onion--with that brochure on the hybrids--but I have no Asgrow catalogue etc. to compare!

'Also, Gnesa would like us to advise if this onion seed (ours) will be short--because they may want 100 lbs. more.

Dick!'

There was still another memorandum forwarded to his superiors by Dick Carey which read as follows:

'* * * More important! I am to get in touch with Mac next week--to meet him and go out and see a grower that wants to plant hybrid Yellow Globe onion--but wants onion like the Y-50 again! So can I step out again and say it is the same type and growing season onion, etc.??

'I'll go ahead but please do all you can to still find out if this onion of ours will equal the Y-50. You know there is a Y-51, etc.--but the Y-51 is different than the Y-50--earlier onion--growing or planting type!'

The trial court found that the representation by Carey to Gnesa was that the Woodruff seed '* * * would produce an onion having the exact same qualities as * * * the 'Y-50," and this finding is supported by substantial evidence. It is maintained by appellants in their briefs that their representations as to the seeds did not include any undertaking as to their time of development; in this connection, respondents depend in part for their damages on the claim that late development of the seed caused serious prejudice to them in the market. The period of development under given conditions is a quality inherent in the seed, and the respondents are correct in their general contention that if there was a warranty that the seed had the same qualities as the Asgrow Y-50 seed, this would include a representation as to the time of maturity.

After talking with Gnesa, Carey returned to Dompe's office where there was prepared and signed by them a form, 'Seed Growing Contract Order and Agreement,' for 200 pounds of Woodruff Hybrid Early Yellow Globe; this document contained a provision as to warranty:

'7. Except as herein otherwise expressly provided, the seller warrants to the extent of the purchase price that seeds or bulbs sold are as described on the container, within recognized tolerances.

Seller gives no other or further warranty, express or implied.'

Dompe admitted on the witness stand that he personally was aware that other seed companies operating in this portion of ...