Moorhead v. Minneapolis Seed Co.
| Decision Date | 14 December 1917 |
| Docket Number | 20,499 |
| Citation | 165 N.W. 484,139 Minn. 11 |
| Parties | E.P. MOORHEAD v. MINNEAPOLIS SEED COMPANY; JOSEPHINE MATTHEWS v. SAME |
| Court | Minnesota Supreme Court |
Two actions in the district court for Hennepin county to recover $6,343.40 and $746.40, respectively, for breach of warranty. The answers alleged that if, on or about the time alleged in the complaint any wheat was sold and delivered by defendant to plaintiff and was by him planted and failed to germinate and grow, such failure was wholly caused by the wilful or careless and negligent acts, omissions and conduct of plaintiff, his agent, tenant and representative in choosing the season and time of planting such wheat, and in selecting cultivating and preparing the soil for planting the same, and in handling, treating and preparing said wheat for planting after its delivery to and before its planting by him, and also by reason of the nature and quality of the soil where planted -- the same being unfit for the production of wheat -- and the conditions of the atmosphere and weather. The cases were tried before Leary, J., who denied defendant's motions for a directed verdict in each case, and a jury which returned verdicts for $2,839.14 and $408.30, respectively. From an order denying its motions for judgment notwithstanding the verdicts or for new trials, defendant appealed. Reversed.
Sale -- oral warranty -- printed disclaimer.
1. The evidence sustains a finding of the jury that in the course of negotiations with the plaintiffs the vice president and general manager of the defendant corporation made an oral warranty of the germinating power of seed-wheat sold them; and the effect of such warranty was not as a matter of law annulled by printed disclaimers of warranty in the letter of confirmation, invoice and shipping tags, though the contract was oral and within the statute of frauds.
Corporation -- authority of general manager to make warranty.
2. The vice president and general manager of the defendant, who had general charge of its office and plant, had authority to bind it by a warranty, though the making of warranties on the sale of seedgrain was contrary to the custom of the trade.
Sale -- measure of damages for breach of warranty.
3. Where there is an entire failure of germination, and therefore no crop, the measure of damages for the breach of warranty of germination is the amount paid for the seed, plus the cost of planting, plus the value of the use of the land for the cropping season, less the value of its use for a proper purpose to which it might reasonably have been put upon the ascertainment of a failure of germination, and not the value of the crop which would have been raised if the seed had been true to warranty less the cost of planting and producing.
Sale -- quaere, whether finding is sustained by evidence.
4. Whether the evidence sustains a finding that there was a breach of warranty in respect of the germinating power of the seed is questioned but not decided.
Koon, Whelan & Hempstead, for appellant.
George C. Stiles and D. C. Edwards, for respondents.
These two actions to recover for the breach of an express warranty of the germinating power of seed-wheat were tried together and there were verdicts for the plaintiffs. The defendant appeals from the order denying its alternative motion for judgment or a new trial.
The questions are these:
(1) Whether the evidence sustains a finding that an express warranty on the sale of seed-wheat was made on behalf of the defendant by its vice president and general manager; and in connection with this the effect of disclaimers of warranty printed on the letter-head confirming the sale, on the invoice, and on the shipping tags.
(2) Whether, in view of the custom not to warrant the germinating power of seed sold, the vice president and general manager had authority to bind the defendant by a warranty.
(3) Whether the measure of damages, there being an entire failure of germination and a consequent total loss of crop, is the value of the crop which would have been raised had the seed been true to warranty, less the cost of planting and producing, or the cost of the seed, plus the value of the use of the land, plus expenses incurred, less the value of the use of the land after the failure of germination.
(4) Whether the evidence sustains a finding that the seed was lacking in germinating power.
1. About April 1, 1915, the plaintiffs entered into negotiations with the defendant through R. M. Johnston, its vice president and general manager, for the purchase of blue stem seed-wheat for the seeding of their farms near Anamoose, North Dakota. Their testimony is that they told him that they had had trouble with germination, and inquired whether he would guarantee the seed which he proposed selling, and that he then warranted it to be of 99 per cent germinating power. By common understanding the question of purchase was left open and was shortly afterwards closed over the telephone by an acceptance by the plaintiffs. By letter of April 6, the sale was confirmed in the usual way. At the top of the letter of confirmation was printed the following:
The wheat was sold f.o.b. and was delivered to the plaintiffs on April 6, on board a Soo car, the invoice was dated on that day, the bill of lading was issued to one of the plaintiffs on April 7, they prepaid the freight, the price was paid the defendant probably on April 8, and the wheat reached Anamoose on April 13 and was accepted by the tenants of the plaintiffs and used in seeding. The invoice contained a printed disclaimer of warranty similar to that on the letter of confirmation and a like disclaimer was on the shipping tags on the reverse side of the address.
Johnston denies that a guaranty was asked or given, but says that there was some talk about germinating tests. No warranty was given in the letter of confirmation, but the results of germination tests were stated and so far as appears were truthful. It is the contention of the defendant that taking the evidence as a whole it is insufficient to sustain a finding of a warranty; and it relies considerably upon the disclaimers of warranty. The contract of sale was oral and within the statute of frauds and invalid until acceptance of the wheat or payment. Payment and acceptance pursuant to the contract satisfied the statute. Scott v. T.W. Stevenson Co. 130 Minn. 151, 153 N.W. 316; Perkins v. Thorson, 50 Minn. 85, 52 N.W. 272. Until payment or acceptance the contract was not complete or binding, a new term might be imported into it, or a term important in the negotiations might be eliminated at the will of either.
The defendant cites on the question of disclaimers of warranty a line of cases of which Ross v. Northrup, 156 Wis. 327, 144 N.W. 1124; Blizzard Bros. v. Growers' C. Co. 152 Iowa 257, 132 N.W. 66; and Seattle Seed Co. v. Fujimori, 79 Wash. 123, 139 P. 866, may be taken as typical. Some of the cases of this character bear upon the question of an implied warranty that what is sold is true to variety or trade-name. Here there is no question of implied warranty. The cases do not go so far as to hold that if an express warranty is made its effect is obviated by the use of letters or invoices or shipping tags on which disclaimers are printed. We would not expect such a holding. These disclaimers are evidentiary in support of the defendant's contention. That far they should have effect. They are not conclusive. If a warranty was actually made, during the negotiations, and not withdrawn or modified, it should be given effect irrespective of the printed disclaimers. See Edgar v. Joseph Breck & Sons, 172 Mass. 581, 52 N.E. 1083.
The evidence in support of the warranty is not particularly convincing. There is much to indicate that the parties were talking about germinating tests and not of a warranty of germinating power. However, there is evidence that the plaintiffs wanted to buy a warranty as well as seed and that Johnston undertook to promise germinating results. The jury might well enough have found that there was no such promise, but instead they found that there was. We are dealing with a finding of the jury approved by the trial judge, who was in much better position than we are for judging testimony, and not with what we may think from a reading of the evidence might as well or better have been found. We hold that the evidence sustains the finding.
2. The next question is upon the authority of Johnston to make a guaranty binding upon his corporation.
The argument of defendant is that when a custom of the trade not to warrant is shown, and here there was evidence of such a custom which for the purposes of this appeal we assume to be conclusive, authority to warrant cannot be implied. The theory is that implied authority in a selling agent to warrant comes from the fact that sales in the particular trade are commonly made with warranty and when such is not the custom authority cannot be implied. Upton v. Suffolk County Mills, 11 Cush. 586, 59 Am. Dec. 163; Wait v. Borne, 123 N.Y. 592, 25 N.E. 1053; Bierman v. City Mills Co. 151 N.Y. 482, 45 N.E. 856, 37 L.R.A. 799, 56 Am. St. 635; Waupaca Electric Light & Ry. Co. v. Milwaukee Elec. Ry. & L. Co. 112 Wis. 469, 88 N.W. 308; 2 C.J. 601; 31 Cyc. 1353; 30 Am. & Eng. Enc. (2d ed.) 165; Williston, Sales, § 445; 2 Mechem, Sales, § 1281, et seq.
Johnston was the vice...
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