Hobdy & Read v. Siddens

• Decision Date: 09 March 1923
• Citation: 248 S.W. 505,198 Ky. 195
• Parties: HOBDY & READ v. SIDDENS ET AL. [a1]
• Court: Kentucky Court of Appeals

248 S.W. 505

198 Ky. 195

HOBDY & READ v. SIDDENS ET AL. ^[a1]

Court of Appeals of Kentucky.

March 9, 1923

Appeal from Circuit Court, Allen County.

Action by Dee Siddens against Hobdy & Read to recover damages for breach of warranty of seed, in which the defendants by cross-petition made the National Seed Company a party defendant, and sought recovery against it for the amount recovered by plaintiff from the original defendants. Judgment for the plaintiff against the original defendants, and cross-petition dismissed, and the original defendants appeal. Judgment for plaintiff affirmed, and judgment dismissing the cross-petition reversed, with directions to enter a judgment for the original defendants on their cross-petition.

Morris & Jones, of Frankfort, and W. D. Gilliam and Gilliam &amp Gilliam, all of Scottsville, for appellants.

Davies Page & Downing, of Louisville, and Oliver & Dixon, of Scottsville, for appellees.

F. R Goad, of Scottsville, for Siddens.

SAMPSON C.J.

This is an appeal from a judgment in a suit commenced in the Allen circuit court for the purpose of recovering damages for breach of warranty as to kind and quality of millet seed. Appellee Siddens, a farmer owning a rich river bottom farm in Allen county, purchased of appellants, Hobdy & Read, retail seed merchants, at Scottsville, 40 bushels of German millet seed at the price of $3.75 per bushel, to be delivered April 1, 1920. As the merchants did not have the seed on hand at the time, they agreed to procure same for appellee Siddens, and did so, and later appellee sent his wagon to the store and obtained the seed, and carried the same to his farm, where it was sown on a 50-acre tract of fine, rich bottom land, after the same had been put in proper condition to receive the seed. When the seed germinated and grew, it was discovered, according to the contention of appellee Siddens, that the harvest was going to be something very different from millet. According to his testimony, it was some kind of unknown wild grass, which produced a hay of very little value. It is further alleged:

"That had said seed been the kind and character bought, and the kind and character warranted, represented, and sold by the defendants to him, that on said 50 acres he would have, at a low estimate, produced one ton of first-class millet per acre, or a total of 50 tons upon said 50 acres; that said hay would have reasonably been worth on the open market, and was worth and would have sold for, $1 per hundredweight or more, or $1,000 is a reasonable and low value of said crop in said year, if said deed had been as warranted and represented by the defendants. Plaintiff says that as a result of sowing said seed there was only produced some kind or character of wild grass or other filth, which has no value for feeding purposes, and could only be used for bedding stalls, filling ditches, or a similar purpose, and that the total amount of this character of the growth produced would not and did not exceed 10 tons, and at a high estimate was not worth exceeding 75 cents per 100, or a sum total of $150."

Appellants, Hobdy & Read, filed answer and cross-petition. By the answer they controverted part of the affirmative averments of the petition, and admitted in substance that they had sold the seed to appellee Siddens at the price stated in the petition, and had warranted the said seed to be genuine German millet. By their cross-petition they made the National Seed Company, of Louisville, a party defendant, averring that they had purchased the seed from the National Seed Company as German millet, and that the said seed company had warranted the same to be the best quality German millet seed. The answer and cross-petition concluded with a prayer that the plaintiff's petition be dismissed; that defendant National Seed Company be summoned as a defendant on cross-petition, and be made a defendant, and, in the event the court should hold Hobdy & Read liable in damages to appellee Siddens, then they prayed that they have recovery over against the National Seed Company for a like amount. Issue being joined and evidence taken, the chancellor, to whom the law and facts were submitted, the cause having been, on motion of appellants and National Seed Company, transferred to equity, entered a judgment in favor of appellee Siddens against Hobdy & Read for $1,000, and dismissed the cross-petition of appellants Hobdy & Read against the National Seed Company. This appeal is prosecuted by Hobdy & Read against both Siddens and the National Seed Company. There is no cross-appeal.

The principle upon which this action rests has been stated in several opinions in substance as follows: Where seed is warranted as to kind, and the vendor knows that the seed is to be planted by the vendee, and it is so planted, the vendor is answerable for the difference between the value of the product of the seed planted and the value of the product that would have resulted, had the seed corresponded to the warranty. Dunn v. Bushnell, 63 Neb. 568, 88 N.W. 693, 93 Am.St.Rep. 474; White v. Miller, 71 N.Y. 118, 27 Am.Rep. 13; L.R.A. 1916C, 1001; Crutcher & Co. v. Elliott, 13 Ky. Law Rep. 592; Gardner v. Winter & Co., 117 Ky. 382, 78 S.W. 143, 25 Ky. Law Rep. 1472, 63 L.R.A. 647. See, also, Buckbee v. Hohenadel Jr. Co., 224 F. 14, 139 C.C.A. 478, L.R.A. 1916C, 1001, Ann.Cas. 1918B, 88.

The petition sufficiently stated a cause of action in favor of appellee Siddens against appellants, Hobdy & Read, for breach of warranty, and the cross-petition against the National Seed Company was equally sufficient. Appellee Siddens testified unequivocally that, when he purchased the seeds from appellant Read, with whom he dealt, Read on behalf of his firm warranted the said seed to be first-class German millet seed, suitable for sowing. He is corroborated in this by Read, of the firm of Hobdy & Read, who states in substance the same. It is further shown by the evidence introduced by appellee Siddens that the crop produced on his bottoms was not that of German millet and was of very little value; that his land was rich and well suited to millet, and that before he sowed the seed in question he prepared the land in the most approved fashion to receive the seed; that the season was good for millet, and that the said land should have produced, had the seed been German millet, at least a ton of hay per acre which said hay would have been reasonably worth a total of something more than $1,000; that he paid $150 for the seed; that the crop he obtained from the said 50 acres was worth only about $150, and that he had been damaged by loss of crops at least $1,000. These facts were well established.

Appellee National Seed Company defended chiefly upon the ground that it made no warranty of the seed which it sold to Hobdy & Read. In support of this contention it proved that the custom among millet seed dealers was to sell such seed without warranty. It further proved that upon its letter heads and stationery, including bills and order blanks, there was printed in plain type in substance the following:

"We give per cent. of purity or germination for the benefit of our customers. These tests are carefully prepared, but not guaranteed. * * * All seeds are selected with great care, but we give no warranty, either express or implied. We do not guarantee any of them, nor will we be responsible for the crop. If not accepted on these conditions, goods must be returned at once. * * * The above purity and germination test is secured from reliable sources and is for information only and without guaranty. We give no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds we send out, and we will not be in any way responsible for the crop."

It further says that upon each of the bags containing the seeds sold...