Kotthoff v. Portland Seed Co.

Citation137 Or. 152,300 P. 1029
PartiesKOTTHOFF v. PORTLAND SEED CO. [a1]
Decision Date30 June 1931
CourtSupreme Court of Oregon

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by W. A. Kotthoff against the Portland Seed Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an action for damages for breach of a contract. The cause was tried to the court and a jury, resulting in a verdict in favor of plaintiff. From the resulting judgment, defendant appeals.

Plaintiff was a merchant at Jefferson, Or., and dealt in seeds. Defendant was a wholesale dealer in seeds, and has been conducting business in Portland, Or., for many years. In March, 1926, plaintiff ordered from defendant by telephone 275 sacks of Rosen rye, with other seeds. These seeds were shipped by freight from Portland to Jefferson. The Rosen rye seed was sold and delivered by plaintiff to J. E. Parrish, a farmer and sheep raiser residing in the vicinity of Jefferson. Parrish used the major portion of the seed in planting during April and the first part of May of that year upon three separate tracts, there being 190 acres sown. Parrish intended to use the tracts as sheep pasture until about April, 1927, and then harvest the seed crop from the seed thus sown.

Rosen rye is a fall variety, and, when sown early in the season will stool and produce sheep pasturage until April, the following year, and then produce a seed crop in the latter year.

After the seed had sufficiently grown, it was ascertained that it was not Rosen rye, but was common rye, and was practically worthless for the purpose for which Parrish sowed the same. Parrish filed an action against the plaintiff Kotthoff in the circuit court of Marion county for damages for the loss of pasturage and seed crop. In that action, judgment was entered in favor of Parrish and against the plaintiff in this action which resulted in a judgment against Kotthoff in the sum of $5,000 and $266.50 costs. The judgment, after the case had been once appealed to this court and remanded for trial (see 128 Or. 529, 274 P. 1108), was entered on stipulation.

Plaintiff alleges in his complaint that he informed defendant at the time of placing the order for the Rosen rye that the seed was to be sold to, and planted by, Parrish for sheep pasture and seed crop purposes, and that the seed was common rye; that the crop produced was of no value; and that had the seed been Rosen rye the value of the crop therefrom would have been $5,000. Defendant denies the main allegations of the complaint and alleges that the sale was made upon condition that it would not warrant the seed as to description quality, productiveness, or in any other respect or matter that it was the general custom of seed trade throughout the United States at the time of the sale not to warrant any seed as to description, quality, or productiveness, which was known to plaintiff at the time he purchased the seed; that the judgment of Parrish against plaintiff was based solely upon a stipulation and agreement between the parties that plaintiff should not be required to pay the same, or in any way be liable therefor, except to co-operate with Parrish and his attorneys in an action against defendant to recover the amount thereof.

W. H. Powell, of Portland, for appellant.

Guy O. Smith and W. C. Winslow, both of Salem, for respondent.

BEAN, C.J.

At the close of plaintiff's case, defendant moved for a directed verdict upon the ground that the evidence showed, without dispute, that the sale of the seed was made under a disclaimer of warranty, and that the evidence also showed Parrish had released the plaintiff Kotthoff from all liability. The jury returned a general verdict for plaintiff and a special verdict that at the time of the sale there was a general custom among seed men, such as defendant, to refuse to warrant seed as to being true to description.

This action is not based upon the judgment in favor of Parrish and against Kotthoff, plaintiff herein, as to the amount thereof, but it is alleged that the amount of damages occasioned by the seed not being Rosen rye was $5,000. Plaintiff also claims the costs incurred in the Parrish action.

The case of Parrish v. Kotthoff, appealed to this court, involved the sale of the identical rye that is in question in the present case, and the law of this case is largely settled by the opinion in the former case.

Defendant assigns error of the court in overruling its motion for a directed verdict, and contends that the sale of the seed was governed by general custom of the seed trade and by previous course of dealings between the defendant seller and the plaintiff buyer. There was a conflict in the testimony upon this question. The court charged the jury as follows:

"There is no issue upon the facts constituting an implied warranty for it is admitted by both parties that there was a sale of goods by description.

"Whether this implied warranty was negatived by the alleged course of dealing or by the alleged general custom, are questions of fact for you to determine in case you find that the facts constituting an express warranty have not been proven."

The verdict of the jury forecloses this question. Section 64-314, Oregon Code 1930, being section 14 of the Uniform Sales Act provides as follows: "Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description, and if the...

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1 cases
  • Western Feed Co. v. Heidloff
    • United States
    • Oregon Supreme Court
    • March 28, 1962
    ...and fattening them,' the court apparently did not regard such a loss as compensable under the circumstances. In Kotthoff v. Portland Seed Co., 137 Or. 152, 300 P. 1029 (1931), a subsequent decision involving the same seeds, we held that 'the testimony in the case shows the value reasonably ......

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