Henderson v. Berce.
Decision Date | 22 November 1946 |
Citation | 50 A.2d 45 |
Parties | HENDERSON v. BERCE. |
Court | Maine 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.
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:
‘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:
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...
To continue reading
Request your trial-
Hinds v. John Hancock Mut. Life Ins. Co.
...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......
-
Sams v. Ezy-Way Foodliner Co.
...warranty of merchantability under Clause II. On the question of damages, see Sec. 69, VII, of Uniform Sales Act; Henderson v. Berce, 142 Me. 242, 252, 50 A.2d 45, 168 A.L.R. 572. As Judge Cardozo said in Ryan v. Progressive Grocery Stores, supra, 255 N.Y. 395, 175 N.E. 107, 74 A.L.R. 'Here ......
-
Cuthbertson v. Clark Equipment Co.
...there is no evidence that Martin-Marietta relied on the quoted language in making the purchase (or lease). See Henderson v. Berce, 142 Me. 242, 251-52, 50 A.2d 45, 50 (1946). In the absence of any evidence that Martin-Marietta and BaRoss "dickered" over the quoted descriptive language, the ......
-
Blackburn v. Carlson Seed Co.
...v. Hastings, 5 Cir., 193 F. 1; Pauls Valley Milling Co. v. Gabbert, 182 Okl. 500, 78 P.2d 685, 117 A.L.R. 466; Henderson v. Berce, 142 Me. 242, 50 A.2d 45, 168 A.L.R. 572; Parrish v. Kotthoff, 128 Or. 529, 274 P. 1108.2 Beaty v. N. W. Electric Power Co-op., Inc., Mo.App., 296 S.W.2d 921; Mo......