Leonard Seed Co. v. Crary Canning Co.

• Decision Date: 24 October 1911
• Citation: 147 Wis. 166,132 N.W. 902
• Parties: LEONARD SEED CO. v. CRARY CANNING CO.
• Court: Wisconsin Supreme Court

147 Wis. 166

132 N.W. 902

LEONARD SEED CO.

v.CRARY CANNING CO.

Supreme Court of Wisconsin.

Oct. 24, 1911.

Appeal from Circuit Court, Door County; Samuel D. Hastings, Judge.

Action by the Leonard Seed Company against the Crary Canning Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On February 14, 1908, plaintiff and defendant entered into a contract whereby the plaintiff agreed to sell to the defendant certain varieties of seed peas. Among other things, the plaintiff agreed to furnish one thousand bushels of “Advancer” peas, and guaranteed 75 per cent. delivery. Such peas were to be grown during the season of 1908, to be delivered after harvest, but in season for the planting trade for the year 1909. A quantity of peas was delivered under this contract to the defendant, it giving its promissory notes in payment therefor according to the terms of the contract. The peas so sold were in turn sold by the defendant to various farmers for the purpose of planting, and under contracts by virtue of which the farmers agreed to sell the peas raised from such seed to the defendant. The plaintiff brought action upon the notes. The defendant, among other things, interposed a counterclaim setting forth that the peas furnished were not “Advancer” peas, that they were received by the defendant without knowledge of that fact, that there was no means of discovering that they were not “Advancer” peas until after they had been sowed and the seed had germinated, and that as soon as the defendant discovered that the peas were not of the variety purchased it notified plaintiff. The counterclaim further set forth that the peas were mixed with other different varieties, making it impossible to harvest them without a mixture of overripe peas of varieties other than “Advancer.” Facts are pleaded tending to show damage, and judgment is asked for the amount thereof. On the trial the court allowed the defendant to amend its answer by setting up a new counterclaim for the purchase price of the peas. The trial court held that the peas were sold without warranty as to quality or description, and directed a verdict for the plaintiff for the amount claimed, less $343.75. The peas were shipped from Chicago and invoiced on the basis of 56 pounds to the bushel. The court held that the defendant was entitled to receive 60 pounds per bushel, and hence made the foregoing reduction. From a judgment in plaintiff's favor, defendant appeals.W. E. Wagener (W. L. Evans, of counsel), for appellant.

Henry Graass, for respondent.

BARNES, J. (after stating the facts as above).

The contract for the sale of the peas contained the following provision: “It is also understood and agreed that the party of the first part [plaintiff] does not give, and its agents and employés are forbidden to give, any warranty, express or implied, as to description, quality, productiveness, or any other matter, of any seeds, delivered or to be delivered by it, and that it is not, and will not be, in any way responsible for the crops.”

Counsel for the appellant admit “that plaintiff is freed by the terms of this contract from all liability as to the seed in question being good or bad, large or small, wrinkled or smooth, black or white, wormy, sound, vital or dead.” But counsel argue that the peas furnished under the contract must be of the “Advancer” variety and that plaintiff was not relieved by its contract from liability for damage resulting from furnishing peas other than “Advancer” peas. It was practically conceded on the argument that the clause quoted was intended to exempt the plaintiff from such liability as was sought to be enforced against it under the counterclaim in this action. The concession was advisedly made. The peas to be delivered under the contract were described therein as “Advancer” peas. But the contract provided that no warranty, express or implied, was given that the peas furnished should be of the description named therein. If a dealer in seed peas can exempt itself from liability for selling bad, wormy, or dead peas to a grower, no good reason is apparent why it cannot go further and say that it will not be responsible in the event of an intermixture of other peas with the variety agreed to be furnished. Neither of the parties here are under guardianship or incompetent to contract. There is no claim that the contract signed was not the one agreed upon, or that both parties did not fully understand what they were agreeing to. Plaintiff plainly undertook...