Modern Farm Service, Inc. v. Ben Pearson, Inc.

• Decision Date: 18 September 1962
• Docket Number: No. 19008.,19008.
• Parties: MODERN FARM SERVICE, INC., Appellant, v. BEN PEARSON, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

308 F.2d 18 (1962)

MODERN FARM SERVICE, INC., Appellant, v. BEN PEARSON, INC., Appellee.

No. 19008.

United States Court of Appeals Fifth Circuit.

September 18, 1962.

COPYRIGHT MATERIAL OMITTED

Percy J. Landry, Jr., Baton Rouge, La., for appellant.

C. E. Laborde, Jr., Marksville, La., Frank E. Chowning, Little Rock, Ark., Edwin L. Lafargue, Marksville, La., Moore, Chowning, Mitchell, Hamilton & Burrow, Little Rock, Ark., Laborde, Lafargue & Brouillette, Marksville, La., for appellee.

Before HUTCHESON, CAMERON and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

This is a suit on two notes secured by chattel mortgages executed by Defendant-Appellant, Modern Farm Service, Inc., in favor of Plaintiff-Appellee, Ben Pearson, Inc., representing the sale of two cotton picking machines. In answer to the original suit, Modern Farm denied liability; and in addition, filed a counter-claim for the purchase price of six additional pickers sold to it by Ben Pearson. The court, without a jury, rendered judgment in favor of Ben Pearson on the notes in the amount of $4,772.00 plus interest and attorneys' fees, and found against Modern Farm on the counter-claim.

Ben Pearson, Inc. is an Arkansas corporation domiciled at Pine Bluff, Arkansas, and holds the patents to and is the manufacturer of the Rust Cotton Picker. Modern Farm Service, Inc. is a Louisiana corporation domiciled at New Roads, Louisiana, and is engaged in the retail sale of farm machinery and supplies.

On June 28, 1951, J. B. Lancaster, President of Modern Farm, wrote the following letter to Ben Pearson:

"We note in the Implement & Tractor Directory, 1951 Edition that (you) manufacture the Rust Cotton Picker.

"It will be appreciated if you will send us information regarding this cotton picker, including any literature that might give us an idea as to whether it is tractor mounted or pulled, or one-row or two-row, etc., as well as price.

"My son expects to pass near Pine Bluff about July 9 or 10 and if your machine appears to be adaptable to conditions in this area he will stop in to see you."

Thereafter, in 1953 or early 1954, a salesman representing Ben Pearson made two or three calls on Modern Farm with the result that J. B. Lancaster, Jr. took a Minneapolis-Moline tractor to the plant in Pine Bluff, Arkansas and Ben Pearson agreed to adapt one of its standard Rust Cotton-Picking units to said tractor. It was a custom of the farmers in Modern Farm's area in New Roads, Louisiana, to plant cotton on rows 5½ feet apart, and the Rust Cotton Picker was designed to fit normal rows 3½ feet apart. A special wide frame on the tractor was proposed in order to compensate for the unusually wide rows in New Roads, Louisiana.

A contract for the sale of this specially built machine was entered into by the parties. An express warranty was attached to the order as follows:

"This will acknowledge your visit with Mr. Powell concerning the type of guarantee on the Experimental Cotton Picker built for you and designed especially for your community.

"It is mutually understood that in event this machine is a failure and will not pick the cotton that your $1000.00 will be refunded. On the other hand, if the machine is successful in harvesting the cotton in your community, you have agreed to pay the balance of $1636.00 when the machine is sold, or on the due date agreed on, October 1, 1954."

The completed experimental unit was delivered to Modern Farm at the Pine Bluff plant and transported by it to New Roads, Louisiana, for testing. During the picking season of 1954, this machine was tested by Modern Farm in two cotton fields in the New Roads area and sold to Major Brothers Plantation, where it now remains. Modern Farm expressed satisfaction with the performance of the picking unit and paid the balance of the purchase price.

In June of 1955, Mr. Gabe Myers, salesman for Ben Pearson, came to New Roads, Louisiana and was accompanied by Mr. J. B. Lancaster, President of Modern Farm, and his son, to call on various farmers in the area. Orders were secured for six additional cotton pickers. It is alleged by Modern Farm, and there was testimony to this effect, that Mr. Myers was questioned by the farmers as to the operation of the machine and that he made certain statements that the machine would not drop cotton and would not damage the new, unopened tender bolls. Later in 1955, Modern Farm transmitted an order to Ben Pearson in Pine Bluff for eight cotton pickers. The order was in writing and specified that the machines were to be Ben Pearson's "Rust Model" Cotton Pickers with "special wide row pickers for 6 foot rows". The order did not contain any express warranty. Following the execution and acceptance of the order for the eight pickers, Modern Farm returned the 1954 experimental picker to Ben Pearson's factory in Pine Bluff so that it could be copied and the eight additional pickers modeled upon it.

Ben Pearson made the special frame for the eight cotton pickers covered by the 1955 order and notified Modern Farm that these units were completed and ready for delivery. J. B. Lancaster, Jr., the son, took some trucks to Pine Bluff to transport the units to New Roads. While in Pine Bluff, Mr. Lancaster gave Ben Pearson a check for $2,000.00 representing a partial payment of $250.00 on each unit, gave notes for the deferred balance, and executed and acknowledged separate chattel mortgages on the eight pickers. The units were then transported to the place of business of Modern Farm in New Roads, where six of them were mounted upon tractors and were delivered to the customers who had previously signed orders for them.

The farmers to whom Modern Farm sold the six cotton pickers were dissatisfied with the performance of the units during the year 1955. The specific complaint of the farmers was that the machines dropped an excessive amount of cotton after it had been picked, which could not be recovered. The 1955 harvest season was unusually wet. Although complaints were made to Modern Farm, it influenced the customers to withhold judgment on the units until they were blessed with more favorable conditions. At the end of the 1955 cotton season, on November 15, 1955, the President of Modern Farm made a special trip to Ben Pearson's factory in Pine Bluff for the purpose of requesting an extension of time for payment of the two notes representing the unpaid balance of the purchase price of the two unsold cotton pickers of which Modern Farm still had possession. On the assertion of the President of Modern Farm that he was unable to sell the cotton pickers because of the extremely wet season, Ben Pearson granted a one year extension of time for payment of the notes. The next year, during the picking season of 1956, the six cotton pickers sold by Modern Farm continued to drop an excessive amount of cotton. Both Ben Pearson and Modern Farm made several experiments on the six cotton pickers during the 1956 season calculated to lessen the amount of cotton dropped, but to no avail.

Following the 1956 cotton season, the farmers remained dissatisfied with the performance of the machines, returned them to Modern Farm, and requested a refund of their money. The President of Modern Farm testified that he accepted the return of the pickers and made adjustments with his customers; not because he was legally bound to so do, but because he felt a moral responsibility towards his customers.¹

When the two notes executed by Modern Farm in 1955, representing the unpaid purchase price of the two cotton pickers that remained unsold in the hands of Modern Farm, became due in the fall of 1956, Ben Pearson made demand for payment. Modern Farm refused to pay the balance due and this suit was instituted. Modern Farm then filed a counter-claim seeking to annul the sale of all eight cotton pickers on the theory that the machines failed to satisfactorily perform contrary to representations made during the sales negotiations. The real...