Jolly v. C. E. Blackwell & Co.

• Decision Date: 27 December 1922
• Docket Number: 16984.
• Citation: Jolly v. C. E. Blackwell & Co., 122 Wash. 620, 211 P. 748 (Wash. 1922)
• Court: Washington Supreme Court
• Parties: JOLLY et al. v. C. E. BLACKWELL & CO.

211 P. 748

122 Wash. 620

JOLLY et al. v. C. E. BLACKWELL & CO.

No. 16984.

Supreme Court of Washington, En Banc.

December 27, 1922

Appeal from Superior Court, Okanogan County; C. H. Neal, Judge.

Action by Andrew Jolly and another against C. E. Blackwell &amp Company.From a judgment for defendant, plaintiffs appeal.Reversed and remanded.

P. D Smith and W. C. Brown, both of Okanogan, for appellants.

Wm O'Connor, of Okanogan, and J. D. Campbell, of Spokane, for respondent.

HOLCOMB J.

Appellants bought from respondent a quantity of seed rye, for spring seeding, amounting to about 2,500 pounds, requested by appellants to be, and represented by respondents would be, spring rye.Three deliveries were made, to wit: On March 17, March 20, and the last delivery, of about 1,500 pounds, on about April 10.The last delivery of about 1,500 pounds of rye came in sacks from the Spokane Seed Company, which were delivered by respondent unopened, and in the original sacks received by it from the Spokane Seed Company, to appellants.All of the rye proved to be fall rye, and would not produce a crop when sown in the spring.The court found that 90 acres of ground were seeded by appellants with the rye so purchased from respondent, and that, had it been spring rye, it would have produced approximately 80 tons of hay, which would have been worth $16 a ton, less the cost of harvesting the same, which would have been not to exceed $4 per ton, and that therefore the plaintiffs were damaged in the sum of $960, on account of the seed not being spring rye.

Each and every sack from the Spokane Seed Company, of the 1,500 pounds of rye last delivered to appellants, had attached a card expressing in words as follows:

'From Spokane Seed Company, 906-8-10 First Ave., Spokane, Wash.The greatest care is exercised to have all goods true and reliable, but they are not warranted, nor will any responsibility be assumed for any loss or damage for failure of crop.If not accepted on these terms, goods must be returned at once.'

On the inside of each bag was a like card, with the label and trade-mark of the Spokane Seed Company in one corner, and in large type in the middle of each card the words 'Seed Rye,' below that 'Spring,' below that 'S. R. 30,' and then the following clause:

'We give no warranty, express or implied, as to description, quality, productiveness, or other matter of any seeds, bulbs, nursery stock, roots or plants we send out, and will not be in any way responsible for the crop.If the purchaser does not accept the goods on these terms, they are at once to be returned.From Spokane Seed Co., Spokane, Washington.'

There is not much dispute over the facts in this case, and less use for contesting as to any fact which may be slightly in conflict.The trial court held that, since the cards containing the disclaimer or notice of nonwarranty were on and in each bga of seed sold and delivered to appellants, and appellants read the cards and preserved them, there was no implied warranty, and appellants were not entitled to recover.The trial court in his opinion stated that appellants knew that the grain was to come from the Spokane Seed Company, and that it was handled and delivered by respondent in the original bags which came to it from the Spokane Seed Company.It found, also, that appellants demanded spring rye for seeding purposes, and it may be presumed that it was intended to seed only spring rye in the spring, and that respondent so understood.

Respondent assured appellants, according to their evidence, that the rye which it would procure and sell to them would be spring rye.Whether or not it so assured them, upon the terms of the purchase, respondent undertook to furnish the seed required, and there would be an implied warranty that the grain purchased would prove true to name.Had respondent itself placed such disclaimer, or notice of nonwarranty, on and in the bags, as was placed thereon and therein by the Spokane Seed Company, from whom it bought, there might be no question but that appellants must have taken the grain without any warranty that it would prove true to name.But appellants did not purchase from, or contract with, the Spokane Seed Company.They saw the label, which said the rye was seed rye for spring.The seed was not defective in any respect, except that it was fall rye, instead of spring rye, and would not produce a crop when sown in the spring.This the appellants were unable to discover by an inspection.No disclaimer was made by respondent.The only disclaimer shown in the case is made by a stranger to the contract and to the suit.

Respondent contends that this case falls within the rule announced in Seattle Seed Co. v. Fujimori,79 Wash. 123, 139 P 866, where there was a similar disclaimer or notice of nonwarranty placed in each bag of pea seed sold and delivered by the vendor.In that case the notice of disclaimer was...