Mosesian v. Bagdasarian

• Decision Date: 21 March 1968
• Docket Number: No. 812,812
• Citation: 67 Cal.Rptr. 369,260 Cal.App.2d 361
• Court: California Court of Appeals Court of Appeals
• Parties: Suren P. MOSESIAN, Plaintiff and Appellant, v. George BAGDASARIAN and California Spray Chemical Corp., Defendants and Respondents. Civ.

Page 369

67 Cal.Rptr. 369

260 Cal.App.2d 361

Suren P. MOSESIAN, Plaintiff and Appellant, v. George BAGDASARIAN and California Spray Chemical Corp., Defendants and Respondents.

Civ. No. 812.

Court of Appeal, Fifth District, California.

March 21, 1968.

Rehearing Denied April 17, 1968.

Paul S. Mosesian, Fresno, for plaintiff and appellant.

Mikio Uchiyama, Fresno, Pillsbury, Madison & Sutro, Noble K. Gregory, Anthony P. Brown and Walter R. Allan, San Francisco, for defendants and respondents.

STONE, Associate Justice.

Plaintiff appeals from an adverse judgment in his action for breach of warranty against an agricultural chemical dealer and an agricultural chemical distributor.

In 1958 plaintiff, who had grown grapes for many years, planted grape cuttings for nursery stock. He used a liquid, identified in the agrochemical business as DD, to fumigate his land for protection against nematodes, and the result was satisfactory. DD is a liquid which when injected into properly cultivated soil to a depth of about nine inches vaporizes and fumigates the soil. To prevent escape of the gas, the top soil is smoothed over and packed or pressed down. The chemical used in 1958 was purchased from and applied by a firm that had no connection with the transaction before us.

The following year, when plaintiff was ready to plant cuttings, he called defendant George Bagdasarian, a dealer in agricultural chemicals, and told him that he intended to plant grape cuttings on a 20-acre parcel of land and a 5-acre parcel, and before planting he wanted both parcels treated for nematodes. Bagdasarian said he knew very litle about nematode control but he would call his distributor, defendant California Spray Chemical Corporation (Cal Spray) and have them send someone to consult with plaintiff. After calling Cal Spray, Bagdasarian advised plaintiff by telephone that someone from Cal Spray would meet plaintiff at the property. Accordingly Fenton George, who died before trial but whose deposition was received in evidence, met with plaintiff and his foreman, a Mr. Hagopian, and the three men looked over both parcels that were to be treated.

After discussing the work, the kind of material and the amount to be applied per acre with plaintiff and Hagopian, Mr. George ordered the material from Cal Spray, specifying the total number of gallons to be delivered. Pursuant to George's instructions, the drums were delivered by Cal Spray to plaintiff's property. Mr. George used his own equipment to apply it, and advised Cal Spray of his charge. Bagdasarian was billed by Cal Spray for the cost of the material less his dealer's discount, and for George's charge for applying the material. Bagdasarian, in turn, billed plaintiff for both the material and Mr. George's application charge, which plaintiff paid in a lump sum.

Although the same gallonage per acre was used on both parcels, the result on the 5-acre parcel was satisfactory while the nematode infestation of the cuttings on the 20-acre parcel prevented the sale of any of them. It is not clear whether the result on the 20-acre as contrasted with the 5-acre parcel resulted because of different types of soil or because of a more severe nematode infestation in the 20 acres at the time of fumigating. The experts opined that the trouble lay in the sandy composition of the soil of the 20 acres, a condition that is particularly favorable to nematode infestation, and the fact that light soils of this character require a heavier dosage of liquid fumigant than heavier soils.

Plaintiff filed this action against Bagdasarian, the dealer and sole proprietor of Baggie Supply Co., Cal Spray, the distributor, and Shell Chemical Corporation, the manufacturer of the product, pleading causes of action for breach of an express written warranty, a breach of an express oral warranty, for negligence, and for fraud and deceit. Fenton George, also a defendant, died during pendency of the action and a dismissal was entered as to him. The court granted a nonsuit as to Shell Chemical Corporation, and plaintiff dismissed his negligence cause of action and those based on fraud and deceit. By stipulation, the jury was dismissed and the trial proceeded before the judge, against defendants George Bagdasarian and California Spray Chemical Corporation.

During the argument concerning Shell Chemical's motion for nonsuit, the trial court raised the question whether there was an implied warranty. Defense counsel pointed out that no implied warranty was pleaded, nor was such an issue specified in the pretrial conference order. Plaintiff then moved to amend his complaint to state a cause of action for implied warranty, under Civil Code section 1735. After hearing argument on the matter, the court denied the motion, which plaintiff contends constituted an abuse of discretion. We doubt there was an abuse of discretion since the complaint had been filed four years and the pretrial order filed three years before trial, and the motion was made well along in the course of trial. In any event, plaintiff cannot complain of the ruling as he adduced no evidence of an implied warranty of fitness. It was established that the material used was not only proper for fumigation of nematodes but that it probably was the most effective material then known. So far as the record discloses, the failure resulted from the application of an insufficiently heavy dosage, that is, not enough gallons per acre were applied to kill the heavy infestation of nematodes on the 20-acre parcel.

Thus, unlike the case of Burr v. Sherwin Williams Co., 42 Cal.2d 682, 268 P.2d 1041, where the farmer ordered a cotton defoliant and the dealer delivered a weed killer, the quality of the material sold to plaintiff is unquestioned. The same distinction holds for the cited cases, Kolberg v. Sherwin-Williams Co., 93 Cal.App. 609, 269 P. 975; and White v. National Bank of Commerce, 99 Cal.App. 519, 278 P. 915. In each case spray material was delivered to the farmer for purposes of pest control with an assurance that it would not injure citrus trees, while, in truth, the spray material was highly toxic to citrus foliage and caused a great amount of damage.

Section 1735 of the Civil Code, upon which plaintiff relies, is limited to a warranty 'as to the quality or fitness for any particular purpose of goods supplied.' Since DD was well suited to the purpose of eradicating nematodes, there was no breach of an implied warranty.

Plaintiff next asserts that he proved a breach of two express warranties. He first contends there was a written express warranty by label. The drums delivered to plaintiff's property bore labels upon which various recommended gallonages per acre were printed. Plaintiff asserts the recommended dosage was applied, but that it did not do the job. The court found against plaintiff on this point for two reasons: first, there was no evidence that plaintiff read or relied upon or even saw the labels; second, plaintiff could not have justifiably relied upon the labels because a disclaimer was printed on each one.

The pretrial conference order made the question of disclaimer an issue, and on that issue the trial court made the following findings:

'XVI. That there existed an express disclaimer of warranty of Product by CALIFORNIA SPRAY CHEMICAL CORPORATION contained on labels affixed to the containers of Product delivered to plaintiff and the subject matter in this case.

'XVII. That the express disclaimer contained within the said labels affixed to the containers of product was legally sufficient to give plaintiff notice that, other than a warranty of chemical components, CALIFORNIA SPRAY CHEMICAL CORPORATION did not warrant or guarantee the quality, use, control or results to be expected from Product.

'XVIII. That plaintiff knew, and as a reasonable man should have known, that the products of CALIFORNIA SPRAY CHEMICAL CORPORATION and Product were sold with express disclaimer and without express representations, warranties or guarantees as to their quality,...