Investors' Mortgage Security Co. v. Strauss & Co., Inc., 5618

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMCNAUGHTON, J.
Citation298 P. 678,50 Idaho 562
Docket Number5618
Decision Date21 April 1931
PartiesTHE INVESTORS' MORTGAGE SECURITY COMPANY, a Corporation, Appellant, v. STRAUSS & COMPANY, INC., a Corporation, Respondent

298 P. 678

50 Idaho 562

THE INVESTORS' MORTGAGE SECURITY COMPANY, a Corporation, Appellant,
v.

STRAUSS & COMPANY, INC., a Corporation, Respondent

No. 5618

Supreme Court of Idaho

April 21, 1931


SALES-BREACH OF WARRANTY-DAMAGES-PRINCIPAL AND AGENT-AUTHORITY OF AGENT-RIGHTS OF THIRD PARTY.

1. That buyer, having received winter instead of spring wheat as requested, alleged breach of express warranty, was not inconsistent with implied warranty (C. S., sec. 5687, subds. 1, 6).

2. Express warranty, if inconsistent with implied warranty, governs (C. S., sec. 5687, subds. 1, 6).

3. Refusal to give requested instruction on issue presented by pleadings and by theory on which case was tried is error.

4. Where agent of seller, sued for breach of warranty, was called as buyer's witness, allowing cross-examination relating to defense that agent had instructions limiting his authority held not abuse of discretion.

5. Buyer who, having received winter instead of spring wheat, refrained from planting crop during following year hoping winter wheat would mature, could not recover for such loss, damages being properly limited to first year.

6. Whether seller's agent had been forbidden to sell wheat with warranty held inadmissible, being no proof as to whether warranty was given.

7. Generally, third person dealing with agent without notice of limitations on agent's authority is not bound thereby. [50 Idaho 563]

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Robert M. Terrell, Judge.

Action in damages for breach of warranty. Judgment for defendant. Reversed.

Judgment reversed, with instructions. Costs to appellant.

P. B. Carter, for Appellant.

Where seed buyer makes known to seller needs for planting, and selects seed upon seller's recommendation, there arises implied warranty that seed is suitable for purposes intended. (Tomita v. Johnson, 49 Idaho 643, 290 P. 395; Rauth v. Southwest Warehouse Co., 158 Cal. 54, 109 P. 839; Gubner v. Vick, 42 Hun, 657, 6 N.Y.S. 4, 25 N.Y. Week. Dig. 356; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 63 L. R. A. 647.)

By the great weight of authority, the sale of seed as of a certain kind--in other words, a sale by description--constitutes a warranty that the seed is of the variety described. (Johnson v. Foley Milling & Elevator Co., 147 Minn. 34, 16 A. L. R. 856, 871, 179 N.W. 488; Keeler v. Green, 51 Mont. 42, 149 P. 286; Ross v. Northrup, King & Co., 156 Wis. 327, 144 N.W. 1124; 35 Cyc. 409; Gubner v. Vick, supra; 24 R. C. L. 413; Hoffman v. Dixon, 105 Wis. 315, 76 Am. St. 916, 81 N.W. 491; Rauth v. Southwest Warehouse Co., supra.)

Secret or private instructions, or limitations upon the general authority of an agent, however binding they may be as between the principal and his agent, can have no effect on a third person, who deals with an agent in good faith, in ignorance of the instructions or limitations and in reliance on the apparent authority with which the principal has clothed him. (2 C. J., sec. 209, citing cases from practically all states.)

Jones, Pomeroy & Jones, for Respondent.

Where the seller expressly refuses to warrant the seed, there is no room for any question of implied warranty in connection with the sale and such refusal to warrant seed relieves the defendant of any implied warranty that the wheat sold was of the variety desired. (Couts v. Sperry Flour Co., 85 Cal.App. 156, 259 P. 108; Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, Ann. Cas. 1912D, 1077, 132 N.W. 902, 37 L. R. A., N. S., 79; 2 Williston on Contracts, p. 1871; 35 Cyc. 373.)

Statements of an agent without proof of the agency are inadmissible. (Hample v. McKinney, 44 Idaho 436, 258 P. 179.)

The measure of damages for a crop that has been lost after the same has been planted is the market value of said crop at maturity less any expense for harvesting and marketing. (Kingsbury v. Bacon, 38 Idaho 701, 224 P. 438; Henson v. Seawell, 35 Idaho 92, 204 P. 660; Risse v. Collins, 12 Idaho 689, 87 P. 1006; Shotwell v. Dodge, 8 Wash. 337, 36 P. 254.)

MCNAUGHTON, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION [298 P. 679]

[50 Idaho 564] MCNAUGHTON, J.

This is an action in damages for breach of warranty in the sale of seed wheat. It is shown that 12,500 pounds of wheat were purchased by plaintiff from defendant for spring seeding; that 3,495 pounds of the wheat delivered was of the variety known as Blue Stem wheat, and that 9,005 pounds was of the variety known as Gold Coin; that Gold Coin is a type of winter wheat suitable only for fall planting; that Blue Stem wheat and Gold Coin wheat, though of entirely different variety, are both white wheats and very similar in appearance. It is claimed by the plaintiff that Blue Stem seed wheat was sought and contracted for but Gold Coin wheat was delivered, and that in reliance upon the representations of the seller that the wheat offered was Blue Stem wheat it seeded the Gold Coin seed upon land set apart and prepared for spring wheat, and that as a result of the discrepancy between the seed bargained for and that delivered and sowed upon the land the season's crop was lost; that the Gold Coin seed being of a winter variety sown in the...

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6 practice notes
  • Hodge v. Borden, No. 9635
    • United States
    • United States State Supreme Court of Idaho
    • July 25, 1966
    ...51. See Rino v. Statewide Plumbing & Heating Co., 74 Idaho 374, 262 P.2d 1003 (1953); Investors' Mortg. Sec. Co. v. Strauss & Co., 50 Idaho 562, 298 P. 678 The discussions herein and views expressed dispose of appellant's further assignments of error relating to the trial court's denial of ......
  • Branom v. Smith Frozen Foods of Idaho, Inc., No. 8932
    • United States
    • United States State Supreme Court of Idaho
    • October 30, 1961
    ...agents in good faith. White v. Doney, 82 Idaho 217, 351 P.2d 380. In the case of Investors' Mortg. Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678, 680, this Court stated: 'The rule is general that a third party dealing with an agent is not bound by restrictions or limitations......
  • Rino v. Statewide Plumbing & Heating Co., No. 7963
    • United States
    • United States State Supreme Court of Idaho
    • November 4, 1953
    ...on such point. Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Investors' Mortgage Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678; Nash v. Meyer, 54 Idaho 283, 31 P.2d 273; Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co., 64 Idaho 474, 133 P.2d 1017; Mason v. ......
  • White v. Doney, No. 8773
    • United States
    • United States State Supreme Court of Idaho
    • April 12, 1960
    ...third parties, who have dealt with those agents in good faith. In the case of Investors' Mortg. Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678, 680, this Court 'The rule is general that a third party dealing with an agent is not bound by restrictions or limitations placed upo......
  • Request a trial to view additional results
6 cases
  • Hodge v. Borden, No. 9635
    • United States
    • United States State Supreme Court of Idaho
    • July 25, 1966
    ...51. See Rino v. Statewide Plumbing & Heating Co., 74 Idaho 374, 262 P.2d 1003 (1953); Investors' Mortg. Sec. Co. v. Strauss & Co., 50 Idaho 562, 298 P. 678 The discussions herein and views expressed dispose of appellant's further assignments of error relating to the trial court's denial of ......
  • Branom v. Smith Frozen Foods of Idaho, Inc., No. 8932
    • United States
    • United States State Supreme Court of Idaho
    • October 30, 1961
    ...agents in good faith. White v. Doney, 82 Idaho 217, 351 P.2d 380. In the case of Investors' Mortg. Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678, 680, this Court stated: 'The rule is general that a third party dealing with an agent is not bound by restrictions or limitations......
  • Rino v. Statewide Plumbing & Heating Co., No. 7963
    • United States
    • United States State Supreme Court of Idaho
    • November 4, 1953
    ...on such point. Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Investors' Mortgage Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678; Nash v. Meyer, 54 Idaho 283, 31 P.2d 273; Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co., 64 Idaho 474, 133 P.2d 1017; Mason v. ......
  • White v. Doney, No. 8773
    • United States
    • United States State Supreme Court of Idaho
    • April 12, 1960
    ...third parties, who have dealt with those agents in good faith. In the case of Investors' Mortg. Security Co. v. Strauss & Co., Inc., 50 Idaho 562, 298 P. 678, 680, this Court 'The rule is general that a third party dealing with an agent is not bound by restrictions or limitations placed upo......
  • Request a trial to view additional results

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