Posz v. Burchell
| Decision Date | 07 November 1962 |
| Citation | 209 Cal.App.2d 324,25 Cal.Rptr. 896 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Paul POSZ, Plaintiff and Respondent, v. Irvin M. BURCHELL et al., Defendants and Appellants. |
Robert O. James, Hughson, Zeff, Halley & Price and E. Dean Price, Modesto, for defendant and appellant Irvin M. Burchell.
Robert O. James, Hughson and James P. Mower, Modesto, for defendants and appellants Muller and Murphy.
McVay, Stone & Reid and Norman S. Reid, Modesto, for plaintiff and respondent.
All of the defendants appeal from a judgment against them based on a jury verdict in favor of plaintiff, Paul Posz, in the sum of $32,324.61 growing out of the sale to plaintiff of boysenberry plants, three-quarters of which died. The complaint as amended is based on theories as to all defendants of express warranty, implied warranty and negligence. The verdict and the judgment specify as defendants Irvin M. Burchell, doing business under the name and style of The Burchell Nursery, Irvin M. Burchell, individually and doing business as The Burchell Nursery (both hereinafter referred to as Burchell), Carl W. Muller and George Murphy, individually and doing business under the name and style of Muller & Murphy Berry Farms, a copartnership, and Muller & Murphy Berry Farms, a copartnership (hereafter referred to as Muller & Murphy). The nurseryman, Burchell, who sold the boysenberry vines to the plaintiff, and Muller & Murphy, the growers of the vines, appeal separately from the judgment.
The first cause of action in the second amended complaint alleges that the plaintiff ordered 58,000 boysenberry vines and that defendants both expressly and impliedly warranted them to be of merchantable quality and reasonably fit for the purpose intended and to be in good growing condition when delivered; that during the month of April 1954, approximately 58,000 vines were in fact delivered to plaintiff, for which he paid the sum of $4,930; that the vines when delivered were in an apparently dormant state and that plaintiff had no means of then knowing whether they were as warranted. The pleading continues by alleging that these vines were planted on 40 acres of plaintiff's land and that approximately 40,270 of the vines did not grow because they were not in good growing condition at the time of delivery and were not of merchantable quality or reasonably fit for the purpose for which intended. The plaintiff alleged damage in the sum of $3,422.99 as the purchase price of these vines which did not grow, $102.69 as the California sales tax, $60.47 as the purchase price of cartons in which the vines were packed, $40.27 as storage charges, the sum of $3,626.42 as damages as the direct and proximate result of their failure to grow. Plaintiff also claimed damage in the sum of $5,500 as the cost of preparing the land and the planting of the berry vines, $4,500 as the amount spent in later consolidating the planting of the vines which did grow, the sum of $28,254 as losses in gross production reasonably to be anticipated in the year 1955 and for further losses in crop production in the years 1956 and 1957 of $33,830.
A second cause of action alleged negligence on the part of all defendants because of the 'careless, reckless and negligent manner in the planting, growing, caring for, storing, selecting and shipping' of the boysenberry vines to the damage of plaintiff in the sum of $75,710.42.
On the first day of the trial plaintiff asked leave to file amendments to the second amended complaint. The new amendments changed the legal theory behind the first cause of action in a rather important particular, left the second cause of action in substantially its original condition, and added a third cause of action.
The first cause of action of the second amended complaint, as changed by the amendments, eliminated an allegation that Muller & Murphy were agents of Burchell; the pleading as changed alleged that on or about March 5, 1954, plaintiff advised Burchell at his place of business in Stanislaus County that he was contemplating planting in excess of 40 acres of land in Colusa County to boysenberry vines for the purpose of raising, growing and producing boysenberries on a commercial basis; that he further told Burchell that he was personally inexperienced in the growing, harvesting and marketing of boysenberries and that he desired expert advice on the adviseability of entering upon such a venture and that he solicited all information which the nurseryman could furnish on the proper methods of planting, caring for and harvesting boysenberries; that in response to such inquiries Burchell advised plaintiff that he did not personally raise boysenberry vines in the quantities requested but that he would procure all boysenberry vines which plaintiff might desire to buy from another grower and would secure the information plaintiff required concerning the raising and harvesting of boysenberries; that pursuant to this offer plaintiff and defendant Burchell entered into an oral agreement wherein plaintiff promised to buy any and all boysenberry vines which he might thereafter require for his contemplated commercial berry growing operations through the agency of the defendant Burchell and that Burchell would act as plaintiff's agent in procuring a supply of suitable boysenberry vines; that defendant Burchell and plaintiff contacted Muller & Murphy and sought their advice on the proposed boysenberry operation; that Muller & Murphy told plaintiff that conditions were favorable for growing boysenberries commercially on plaintiff's land and further advised plaintiff that they would furnish him with all the young boysenberry vines that he required for said purpose; that Burchell also offered expressly to warrant on his own behalf all boysenberry vines procured from Muller & Murphy and that such warranty would be that they would be in good growing condition at the time of delivery. The pleading continues by alleging that as a result of said 'advice, representations, guarantees and warranties' the plaintiff ordered from Muller & Murphy approximately 58,000 boysenberry vines, which defendant agreed to and did sell and deliver to plaintiff in the County of Colusa during the month of April 1954.
'Pursuant to this agreement, plaintiff promised to and did order the said vines and pay therefor by and through the agency of defendant, IRVIN M. BURCHELL, and said agent gave plaintiff his express warranty in writing that said vines were in good growing condition at the time said vines were delivered to plaintiff pursuant to the said agreement.'
The pleading, as amended, alleges damages as set forth in the second amended complaint.
The second cause of action, based on the alleged negligence of all the defendants, is substantially the same as in the second amended complaint already reviewed.
The new third cause of action incorporates by reference much of the first cause of action, as amended, and continues by alleging that in March 1954 plaintiff entered into an oral agreement with defendants:
The third cause of action continues by alleging that before entering into the oral agreement, above alleged, plaintiff '* * * informed defendants, and each of them, that he desired the specified vines for the purpose of planting them on the land referred to in paragraph I * * * and that he intended to raise, grow and produce boysenberries therefrom on a commercial basis.'
The third cause of action continues by alleging that in March and April 1954 plaintiff ordered 58,000 boysenberry vines from Burchell and agreed to pay therefor pursuant to the agreement. It is then alleged that the vines were delivered to plaintiff in Colusa County and were grown and selected for sale by the defendants Muller & Murphy. Damages as set forth in the second amended complaint are asked for.
The evidence shows that in June of the year 1953 the plaintiff, Paul Posz, bought about 50 acres of land in Colusa County, a portion of which had been previously planted to barley and prunes. Plaintiff had never personally engaged in farming; advised by a friend, Richard Gimlen, he removed the prune orchard, leveled the land, drilled a well to provide irrigation, and discussed with others the kind of crop he should plant. He talked with Burchell at his nursery in Stanislaus County and told him of his decision to plant boysenberry vines. Burchell in turn referred Mr. Posz to Muller & Murphy, growers of berry vines. They conferred several times with respect to berry production and the acquisition and care of plants. Among the matters talked about by Mr. Posz and Mr. Gimlen on the one hand and Mr. Muller and Mr. Murphy on the other, was the lateness of the season. The growers said that in the Modesto area they considered an absolute deadline for planting to...
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