Nakanishi v. Foster, No. 36670

• Court: United States State Supreme Court of Washington
• Writing for the Court: DENNEY; OTT
• Citation: 393 P.2d 635,64 Wn.2d 647
• Parties: Frank S. NAKANISHI, Appellant, v. Harry FOSTER, doing business as J. W. Dunn & Company, and Waldo Rohnert Company, Respondents. Stephen F. LONE and Frank X. Lone, doing business as Lone Brothers, Appellants, v. Harry FOSTER, doing business as J. W. Dunn & Company, and Waldo Rohnert Company, Respondents. Frank S. NAKANISHI, Appellant, v. Raymond W. GILL, Cornelius P. Miller and Helen G. Miller, partners, doing business as Gill Bros. Seed Company, and Waldo Rohnert Company, Respondents.
• Decision Date: 25 June 1964
• Docket Number: No. 36670

Page 647

64 Wn.2d 647 393 P.2d 635 Frank S. NAKANISHI, Appellant,
v.
Harry FOSTER, doing business as J. W. Dunn & Company, and
Waldo Rohnert Company, Respondents.
Stephen F. LONE and Frank X. Lone, doing business as Lone
Brothers, Appellants,
v.
Harry FOSTER, doing business as J. W. Dunn & Company, and
Waldo Rohnert Company, Respondents.
Frank S. NAKANISHI, Appellant,
v.
Raymond W. GILL, Cornelius P. Miller and Helen G. Miller,
partners, doing business as Gill Bros. Seed
Company, and Waldo Rohnert Company, Respondents. No. 36670. Supreme Court of Washington, Department 2. June 25, 1964.
Rehearing Denied Aug. 27, 1964.

Page 648

[393 P.2d 637] Koenigsberg, Brown & Sinsheimer, William W. Brown, Seattle, for appellants.

Brethorst, Fowler, Bateman, Reed & McClure, Seattle, for Harry Foster.

Knapp & Knapp, Seattle, for Gill, Miller et al.

Flanders, Flanders & Trolson, Lew E. Flanders, Seattle, for Waldo Rohnert Co.

Page 649

DENNEY, Judge. ^*

Three cases were consolidated for trial and on appeal. In each case the plaintiff sought damages for breach of contract, breach of warranty and negligence in the sale of lettuce seed.

Plaintiffs operated truck farms near Renton and Auburn, Washington. Plaintiff Nakanishi ordered a pure strain of lettuce seed known as 'Great Lakes R-200' from defendants Raymond W. Gill, Cornelius P. Miller and Helen G. Miller, seed distributors, doing business in Portland, Oregon, as Gill Bros. Seed Company (hereinafter called Gill). Plaintiff Nakanishi placed another order for the same variety of seed with defendant Harry Foster, a seed distributor, doing business in Seattle as J. W. Dunn & Co. (hereinafter called Dunn). Plaintiffs Stephen F. Lone and Frank X. Lone, doing business as Lone Brothers, ordered the same variety of seed from Dunn. Both Dunn and Gill purchased the Great Lakes R-200 seed from defendant Waldo Rohnert Company (hereinafter called Rohnert), a California corporation whose principal place of business is Hollister, California. Rohnert is engaged in producing, procession and selling wholesale vegetable seed to seed dealers.

Rohnert delivered to Dunn and Gill a spurious mixture of seed containing some Great Lakes R-200, but in a larger part a variety known as 'Imperial 101' which is adapted to use in hot and arid climates. The seed delivered to Dunn and Gill was invoiced as Great Lakes R-200 and the sacks containing the seed were labeled in the same manner. The spurious seed was, in turn, sold to plaintiffs in sacks labeled by Dunn and Gill as Great Lakes R-200.

An inspection of the seed would not reveal that it was spurious and mislabeled. Plaintiffs planted the seed. The mistake became apparent 2 weeks prior to harvest when about 75 per cent of the crop would not head out but went to seed, and was not marketable.

Rohnert's letterheads, invoices and contracts with Dunn and Gill contained language disclaiming all warranty except

Page 650

that the seeds 'are as described in the container to the extent of the purchase price.' The tabs and labels attached to the sacks of seed delivered by Rohnert to Dunn and Gill read as follows:

'LETTUCE--New York Types

'Great Lakes, R. Strain, No. 200

'The Waldo Rohnert Company warrants to the extent of the purchase price that seeds sold are as described on the container, within recognized tolerances. Seller gives no other or further warranty, express or implied.

'WALDO ROHNERT CO. Wholesale Seed Growers

'Gilroy--California'

[393 P.2d 638] In filling Nakanishi's order, Gill made disclaimers of warranty on order blanks, invoices, tags and labels in similar language.

Dunn made disclaimers on its orders and invoices in the following language:

'Because conditions of use that are of critical importance are beyond our control, J. W. Dunn & Company makes no representation or warrant concerning the material described herein, and the buyer agrees that none shall be implied by law, except that the materials shall conform to the chemical description on the label.'

Dunn's tags and labels attached to bags of seed delivered to plaintiffs read as follows:

'We exercise great care to have all seeds, bulbs, nursery stock, roots or plants pure and reliable, but give no warrant, expressed or implied in any respect, and will not be responsible for the crop. If not accepted on these terms, they must be returned at once.'

During trial to a jury, the trial court resolved all issues of liability as a matter of law by instructing the jury that Dunn and Gill were liable to the plaintiffs and that Rohnert, in turn, was liable over to Dunn and Gill. The issue of damages was submitted to the jury, which brought in a verdict of $10,522.50 for Nakanishi against Dunn and in favor of Dunn over against Rohnert in the same amount. Nakanishi's verdict against Gill and by Gill over against

Page 651

Rohnert was $6,296.25. Lone Brothers' verdict against Dunn and by Dunn over against Rohnert was $6,900. ¹

After hearing argument on motion for new trial, the trial court entered the following order:

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED That a new trial be granted with respect to the consolidated actions on the basis that error in law was committed by the Court in instructing the jury to find for the plaintiff against the seed distributors instead of in favor of the plaintiff against the Rohnert Company, and in withdrawing from the jury's consideration whether the defendants, Harry Foster and Raymond W. Gill, should be dismissed from the case. A new trial is also ordered on the ground of excessive damages, resulting from passion or prejudice.'

Plaintiffs appeal from this order and first contend that Dunn and Gill are liable as a matter of law for breach of contract in supplying a variety of seed different from that ordered, that any disclaimers of warranty came too late to become effective and Dunn and Gill cannot rely on them. The trial judge at first so ruled in submitting the case to the jury. This theory has been followed by several courts in this country. Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N.E. 1083; Corneli Seed Co. v. Ferguson, 64 So.2d 162 (Florida 1953); Rocky Mtn. Seed Co. v. Knorr, 92 Colo. 320, 20 P.2d 304; Smith v. Oscar H. Will & Co., 51 N.D. 357, 199 N.W. 861; Ward v. Valker, 44 N.D. 598, 176 N.W. 129; Phelps v. Grand Rapids Growers, Inc., 341 Mich. 62, 67 N.W.2d 59; Diepeveen v. Vogt, Inc., 27 N.J.Super. 254, 99 A.2d 329.

Many courts, including this one, have held that the contract of sale is not completed until delivery of the seed and the buyer accepts the disclaimers of warranty as a part of the contract of sale, and this is true even though the product is not true to name or label. Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562; Hall v. Mosteller, 245 S.W.2d 338 (Tex.Civ.App.); Couts v. Sperry Flour Co., 85 Cal.App. 156, 259 P. 108; William A. Davis Co. v. Bertrand

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Seed Co., 94 Cal.App. 281, 271 P. 123; Hoover v. Utah Nursery Co., 79 Utah 12, 7 P.2d 270; Gilbert v. Reuter Seed Co., Inc., 80 So.2d 567 (La.App.1955); Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 132 N.W. 902, 37 L.R.A.,N.S., 79; Ross v. [393 P.2d 639] Northrup, King & Co., 156 Wis. 327, 144 N.W. 1124; Kennedy v. Cornhusker Hybrid Co., 146 Neb. 230, 19 N.W.2d 51, 160 A.L.R. 351; Lumbrazo v. Woodruff, 256 N.Y. 92, 175 N.E. 525, 76 A.L.R. 1017; Kibbe v. Woodruff, 94 Conn. 443, 109 A. 169; Herrera v. Johnston, 140 Cal.App.2d 822, 295 P.2d 963; Seattle Seed Co. v. Fujimori, 79 Wash. 123, 139 P. 866; Jolly v. C. E. Blackwell & Co., 122 Wash. 620, 211 P. 748.

The case of Larson v. Inland Seed Co., 143 Wash. 557, 568, 255 P. 919, 62 A.L.R. 444, involved a seed supplier who filled an order for spring rye seed by shipping fall rye seed with printed tag attached to the bag disclaiming express and implied warranty as to description and other matters. This court held the supplier not liable for breach of implied warranty in failure of crop. The court said:

'Some contention is made in behalf of Larson rested upon the theory that the disclaimer of warranty was by the feed mills brought to his attention too late; that is, after the making of his contract for the purchase of the spring rye, invoking the law as announced in Edgar v. [Joseph] Breck & Sons Corp., 172 Mass. 581, 52 N.E. 1083 [citing other cases]; holding, in substance, that a disclaimer of warranty made after the making of a sale contract, complete in itself, will not avail the vendor to relieve him from warranties, express or implied, embodied therein. * * * Larson finally simultaneously acquiesced in the sale contract between him and the feed mills, and in the manner of its performance, when he received the shipment of the rye at Loon Lake. That was, it seems to us, under the circumstances here shown, the ultimate making of the sale contract. * * *'

In the case of Norway v. Root, 58 Wash.2d 96, 361 P.2d 162, this court indicated it would closely examine the validity of disclaimers of implied warranties. That case involved the standard sale contracts of automobiles where the manufacturer and dealer expressly limit liability to replacement of defective parts. Such disclaimers were held

Page 653

to be unconscionable and against public policy where the defective part resulted in injury to the purchaser of the automobile, in the case of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1.

In the sale of seed, the dealer usually has no practical way to determine whether or not seed delivered by a wholesaler or processor is pure and according to label. The price of seed is small in comparison to the amount of consequential damage to the farmer in a failure of crop. Under these circumstances, the parties are left free to contract in making and accepting disclaimer of implied warranty.

This freedom to contract is...