Henderson v. Berce.

Decision Date22 November 1946
Citation50 A.2d 45
PartiesHENDERSON v. BERCE.
CourtMaine Supreme Court

OPINION TEXT STARTS HERE

Report and Agreed Statement from Superior Court, Aroostook County.

Action on the case by Leon Henderson against Woodbury L. Berce, sole proprietor, engaged in trade under the firm name and style of C. F. Clark & Son, for breach of implied warranty of variety in sale by defendant to plaintiff of seed potatoes. On report from the superior court and agreed statement of facts.

Judgment for plaintiff.

George B. Barnes, of Houlton, for plaintiff.

Scott Brown, of Houlton, for defendant.

Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, TOMPKINS, and FELLOWS, JJ.

TOMPKINS, Justice.

Action on the case to recover damages for breach of implied warranty of variety in the sale by the defendant to the plaintiff of fifty barrels of certified Earlaine seed potatoes. The case is before the Court on report and agreed statement of facts, the Law Court to render such final decision as the rights of the parties may require.

The plaintiff testified that in February 1944 he bought, over the telephone, fifty barrels of certified Earlaine seed potatoes No. 2 from the defendant. The potatoes were delivered to Mr. Henderson, the plaintiff, in containers marked as provided under our statute relative to certified seed. The plaintiff further stated that in his conversation with Mr. Berce, the defendant, he told him he was purchasing the potatoes to raise seed for the coming year.

The potatoes were planted during the farming season of 1944 and entered with the State Department of Agriculture for certification. Under the regulations authorized by the statute they were duly inspected by Wendell Sharp, an inspector for the Maine Department of Agriculture. Mr. Sharp testified that he made two field inspections and that so far as these two readings were concerned they were good relative to disease. Mr. Sharp had been an inspector for the Maine Department of Agriculture for twenty-one years or more, and he stated that the fact that certified seed was planted does not insure that the crop raised from that seed will certify, because of aphids carrying disease virus from diseased fields to certified fields, and that weather conditions and condition of the land on which the potatoes are planted have nothing to do with failure to certify. The question of infection, he stated, was entirely due to bugs and that this infection of the potato would not show until the next year. He further stated that when the potatoes raised from the seed in question were harvested they were of a mixed variety.

Mr. Henderson stated that from a visual inspection of the potatoes when delivered, he himself could not tell the difference in the variety of the potatoes, but after the potatoes were growing and at the time of the second inspection he could tell the difference in variety. The inspector after the potatoes were dug decided that there was a mixture of varieties in the potatoes.

At the close of the testimony of the plaintiff and inspector Sharp the following stipulation was made:

‘It is stipulated and agreed that the potatoes sold by the defendant to the plaintiff were grown and prepared for sale by the defendant in accordance with the regulations laid down by the commissioner of agriculture for the growing and certification of certified seed potatoes, as set forth under Sec. 124 of Chap. 27 R.S.1944, and that to each bag of potatoes was attached a tag of certification as provided for under Sec. 127 of said Chap. 27; that the bags actually contained a varietal mixture of 70% Houma and 30% Earlaine potatoes; that the permitted tolerance of varietal mixture under the regulations of the commissioner of agriculture is .0025%; that the defendant acted in good faith, without fraud or deceit, there being no knowledge on his part that the potatoes sold to the plaintiff contained a varietal mixture.

‘It is further stipulated and agreed that if the defendant is liable for damages, they should be assessed under one of the following methods:

‘a. The difference between the market value of table stock and certified seed at the time of sale $150.

‘b. The difference between the table stock market price of the crop grown by the plaintiff from the seed purchased from the defendant and the value of the crop as certified seed at the time of harvest $516.04.

‘c. The difference between the table stock market value of the crop grown from the seed purchased by the plaintiff from the defendant and the amount the plaintiff had to pay to procure certified seed of the same quantity in the spring of 1945 for the purpose of planting his 1945 crop $973.20.

‘It is further stipulated and agreed that there are only two issues in this case:

‘First: Is the defendant protected against liability if in good faith he grew and prepared for sale the potatoes in accordance with the rules and regulations laid down by the commissioner of agriculture for the growing and selling of certified seed potatoes, and the commissioner through his inspector did in fact inspect and certify as certified Earlaine seed potatoes the potatoes sold by the defendant to the plaintiff.

‘Second: If the defendant is liable, which of the above rules of damage should apply.’

It may be noted in the stipulation that Sections 124 and 127 of Chapter 27, R.S.1944, are to all intents and purposes the same as Sections 4 and 7 in Chapter 41, R.S.1930, which were in effect when the sale was made and this right of action accrued. To decide the first issue submitted to this Court it is important to consider the provisions of Sections 4, 5, 6 and 7 of Chapter 41 of R.S. of Maine for 1930, and determine the bearing they have upon this issue. These provisions are set out as follows:

Sec. 4. The term certified seed as used in this chapter shall be deemed to mean potatoes or such vegetable seeds as shall have been grown and prepared for sale in accordance with regulations laid down by the commissioner of agriculture and for which a certificate or tag has been issued as provided in section seven. Authority to make all reasonable rules and regulations hereunder is hereby given the commissioner of agriculture.

Sec. 5. Any grower of potatoes or vegetable seeds may make application to the commissioner of agriculture for inspection and certification of his crop growing or to be grown in this state, giving description of his land and such information as the said commissioner may require. He shall also enter into an agreement to pay such fee into the treasury of state for said inspection and certification as the said commissioner shall deem necessary to cover the cost of inspection and certification. Thereupon his crops shall be listed for inspection and inspected and certified by the said commissioner or his agents under such rules and regulations as the said commissioner may provide. Authority to make all reasonable rules and regulations hereunder is hereby given the commissioner of agriculture.

Sec. 6. In determining the amount of the fee to be paid by the growers of potatoes or other vegetable seeds for inspection and certification under this chapter, the commissioner of agriculture may establish an entry charge not to exceed fifty cents on each acre of potatoes or other vegetables for which such inspection and certification is requested, but in the case of potatoes which shall be found to be unfit for certification, the amount of such entry fee shall not exceed the actual cost of labor performed by the said commissioner or his agents upon such potatoes, nor shall the charge for labor so performed upon such potatoes as shall be found unfit for certification exceed the above named amount of fifty cents per acre, and in the case of potatoes which shall be accepted and certified the said commissioner shall establish a fee for field inspection not to exceed two dollars and fifty cents per acre inclusive of entry charge and also a supplementary charge of five cents for each barrel of potatoes which shall be finally accepted, certified, and sold as certified seed as defined in this chapter.

Sec. 7. The commissioner of agriculture may issue a certificate or tag which shall be attached to each container or package in which certified seed shall be offered or exposed for sale. Such tag or certificate shall indicate the name of the grower, the shipping station or depot, the name of the inspector making the final inspection, the variety of the seed, and shall bear the imprint of the seal of the state. Any tag, having the words ‘inspected,’ or ‘certified seed’ thereon, attached to the container or package in which certified seed shall be offered or exposed for sale, shall be so attached thereto that the whole of said certificate or tag shall be in full view. Any person who shall knowingly or wilfully misuse any such tag or certificate or who shall attach to any package or container of seed which has not been duly inspected and certified, any such tag or certificate which shall have printed thereon the words ‘certified seed’ or which by reason of color, size, shape, or otherwise may convey the impression that such seed has been certified by the commissioner or his agents, shall be punished by a fine of fifty dollars for each offense and shall be thenceforth denied the privileges of sections four to eight inclusive.'

The language of the act clearly shows that it was intended to be regulatory, and penal only if the act was knowingly or wilfully violated. It does not purport to establish any new rule of civil liability for the breach of an express or implied warranty in the sale of certified seed potatoes. Section four defines the term certified seed and names the agricultural seeds which are to be included within its provisions. When the grower has complied with sections five, six and seven the seeds then appear in commerce as certified seed potatoes. Without performing the conditions set forth in sections five, six and seven the seeds do not qualify for...

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    ...spoke of it as serving 'in the place of evidence, until prima facie evidence is adduced by the opposite party.' In Henderson v. Berce, 142 Me. 242, 50 A.2d 45, 168 A.L.R. 572, the presumption was 'destroyed' by competent evidence. In Eisenman v. Austen, 132 Me. 214, 215, 169 A. 162, our cou......
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