Keeler v. Green, No. 3515.

• Docket Nº: No. 3515.
• Citation: 51 Mont. 42
• Case Date: May 25, 1915
• Court: United States State Supreme Court of Montana

51 Mont. 42

KEELER
v.
GREEN.

No. 3515.

Supreme Court of Montana.

May 25, 1915.

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by F. W. Keeler against S. L. Green. Judgment for plaintiff, and defendant appeals. Affirmed.

P. M. Wishon, of Polson, for appellant.

SANNER, J.

The complaint alleges, in substance, that on April 1, 1913, the defendant sold to the plaintiff 145 bushels of wheat for spring seeding, warranting said wheat to be spring Fife wheat; that after properly preparing the ground, plaintiff properly sowed the wheat upon 97 acres and used care and diligence to make the same produce a crop; that said wheat did not produce a crop because it was not spring wheat, but fall wheat, and was therefore worthless and of no value to the plaintiff; that he did not know and could not ascertain, prior to the summer of 1913, that the wheat was not spring Fife wheat as warranted, but that defendant knew, or could with reasonable diligence have ascertained, that fact when he delivered said wheat to the plaintiff. The complaint then fixes the damages in gross at $683.50 and in paragraph X avers:

“That on said 97 acres of land, there sprang up and grew this year [1913] a thin, scattering crop of spring wheat which plaintiff believes was from seed scattered to the ground during the harvest of 1912, which plaintiff has carefully cut, stacked, and threshed, which is of the reasonable value of $181.13, to which amount the defendant is justly entitled to credit.”

Judgment is asked for $502.37. After answer and trial upon the merits, judgment for the plaintiff for $300 was entered on the verdict of the jury. From that judgment this appeal is taken.

But one question is presented, viz., Does the complaint state a cause of action? The defendant insists that it does not, for two reasons, viz.: It contains no allegation that defendant “had knowledge of the variety of the wheat he sold,” and it attempts to state a cause of action based upon the total worthlessness of the wheat sold, which is negatived by the allegations of paragraph X above quoted. We see nothing in either objection. As to the first, the allegations are clearly sufficient to charge a warranty of character and quality by the seller; it is his duty to know that the goods delivered were of that character and quality, and if they were not, the responsibility is his, in the absence of an acceptance with knowledge by the buyer. Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am....