J. S. Elder Grocery Company v. Applegate

• Decision Date: 06 February 1922
• Docket Number: 131
• Citation: 237 S.W. 92,151 Ark. 565
• Parties: J. S. ELDER GROCERY COMPANY v. APPLEGATE
• Court: Arkansas Supreme Court

237 S.W. 92

151 Ark. 565

J. S. ELDER GROCERY COMPANY v. APPLEGATE

No. 131

Supreme Court of Arkansas

February 6, 1922

Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.

STATEMENT OF FACTS.

Appellee instituted this action in the circuit court against appellants to recover damages in the sum of $ 106 for an alleged breach of warranty in the sale to him by appellants of eleven bushels of peas for the purpose of planting.

J. E Applegate, the appellee, was a witness for himself. According to his testimony he was engaged in farming near Rogers Arkansas, during the year 1920. In the early part of April of that year he bought from the J. S. Elder Grocery Company eleven bushels of peas of the California Blackeye variety. The witness had grown Whippoorwill peas in Arkansas for several years, but had never planted any California Blackeye peas before. He asked appellants for Whippoorwill peas and was told that they did not have them, but that they had California Blackeye peas which they sold to him to be planted. We copy from his testimony, the following:

"Q. Tell the jury what you paid for them, what was the contract?

"A. Well, I went to Mr. Elder to find out about these peas. I inquired of him about them, and it seems there wasn't any, he didn't have any, and didn't know of any, and he told me he had California Blackeye peas. He told me they were good producers, had plenty of food value in them, but not as viney as the Whippoorwill peas, yet produced a good vine, and made a very good hay, but that they were more to produce peas, and that he had had considerable experience with them down south, and had sold quite a few to the different fellows around over the country, but said he did not have the other peas. Well, I took it under consideration and when I found out that I could not get the Whippoorwills I went down there and asked him if he still had these peas between ten and eleven bushels, and I bought all of them. I planted them between April 21 and 24. I sowed some Whippoorwill peas, and some of this kind."

According to the witness he prepared the ground well where he planted the peas, and it was fertile. The weather was not too inclement for them to come up, and there was nothing in the appearance of the peas from which it could be told that they would not germinate. It cost witness $ 3 an acre to prepare ten acres of ground for planting the peas. The peas did not come up and an examination of them in the ground showed that they were rotten. Appellants told the witness that they had bought the peas from the Ozark Grocery Company, and would see what could be done about it.

According to the testimony of a salesman of the Ozark Grocery Company that company did not handle California Blackeye peas for seed purposes during the spring of 1920, and only sold them for food. The peas which they sold for food had been treated to keep the weevils out.

According to the evidence adduced for appellants no warranty, express or implied, of the peas was made to appellee. Appellants bought the peas in question from the Ozark Grocery Company, and that company did not inform them that the peas were not fit for seed purposes. Appellants advertised in a weekly newspaper published in Rogers, Benton County, Ark., that they gave no warranty, express or implied, in any manner whatever with regard to the seeds sold by them. They said in the advertisement that they had endeavored to buy the best seeds obtainable after careful investigation.

Other witnesses for appellants testified that they bought California Blackeye peas from appellants and planted them in April, 1920, and that they failed to come up on account of the cold wet weather. They planted the same kind of peas later on in the season, and they came up well.

The jury returned a verdict for appellee in the sum of $ 76, and from the judgment rendered appellants have duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

Duty & Duty, for appellants.

The testimony was not sufficient to show an express warranty. To constitute an express warranty it must have been so intended by the parties. 35 Cyc. 374; 11 Ark. 339; 64 Mo. 531.

An express warranty will exclude an implied warranty of fitness for the purpose intended, and where one is waived he may rely on the other, but he cannot rely upon both. 79 Iowa 282; 44 N.W. 548; 35 Cyc. 392; 76 Ark. 177.

Where one purchases seed by name, the warranty implied is that the seed is of the kind designated, and there is no waranty that the seed will germinate or be fit for the purpose intended. 35 Cyc. 409; 117 Ky. 382; 78 S.W. 143; 63 L. R. A. 647; 107 F. 886; 76 Ark. 177.

Upon the sale of chattels the law implies no warranty; that is a matter of contract between the parties. 108 Ark. 254; 70 Ark. 61 A purchaser assumes the risk of the quality of the chattel sold him, unless there be fraud or warranty in the sale. 45 Ark. 284. There is a waiver of warranty where he has opportunity of inspection of the goods sold. 76 Ark. 66. The rule of caveat emptor applies where the buyer and seller have equal opportunities of inspection. 35 Ark. 397.

Instruction No. 5 requested by defendant should have been given. 161 Mich. 266; 21 Ann. Cas. 74; 78 Ark. 177; 74 Ark. 144.

John W. Nance, for appellee.

An affirmation by the seller that seed sold are good and other affirmations as to quality constitute an express warranty. 24 R. C. L. p. 199, par. 470; 24 R. C. L. p. 168, par. 442; Ann. Cas. B-P 73.

There was an implied warranty, and defendant was liable. 24 R. C. L. p. 190, par. 470.

OPINION

HART, J. (after stating the facts).

Counsel for appellants urge as error the admission of certain testimony before the jury given by appellee. Appellee was permitted to testify that he planted some soy beans about the 21st of April, 1920, and they made a good crop. He was also permitted to testify that he sowed Whippoorwill peas about the 10th of May, 1920, and made a pretty good crop of them.

Counsel for appellee claims that this testimony was competent to show that appellee had properly prepared his ground and planted the seeds in due season. He contends that the fact that they grew in the same soil under the conditions testified to is a circumstance tending to show that the failure of the California Blackeye peas to come up was the lack of germinating qualities in them.

We cannot agree with counsel in this contention. It is true that the California Blackeye peas were planted about the 21st of April in the same soil, but it was not shown by appellee that the soy beans had the same germinating qualities as the California Blackeye peas, or that they should be planted about the same time. The Whippoorwill peas were not planted until the 10th of May following the planting of the California Blackeye peas on the 21st of April. The season was then further advanced, and the fact that they grew at that time in the same soil would not tend to show that the...