Q. Vandenberg and Sons, N. V. v. Siter
| Citation | 204 Pa.Super. 392,204 A.2d 494 |
| Parties | , 2 UCC Rep.Serv. 383 Q. VANDENBERG & SONS, N. V. v. Albert S. SITER and Bartlett Siter, Individually and Trading as Albert Siter & Son, Appellants. |
| Decision Date | 12 November 1964 |
| Court | Superior Court of Pennsylvania |
Robert F. Jackson, Media, for appellants.
Samuel Lichtenfeld, Broomall, for appellee.
Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
The plaintiff, a grower and dealer in Holland, sued the defendants for the balance of the purchase price of certain tulip and hyacinth bulbs. The defendants counterclaimed for $9,036.97 averring breach of an express warranty that the bulbs were sound and healthy at the time of the shipment and implied warranties that they were merchantable and fit for the purpose for which they were sold.
The contract contained the following clause of warranty:
The trial judge excluded or struck from the record all testimony offered by the defendants to show breach of warranty, so far as it related to the condition of the bulbs more than eight days after delivery to the defendants, including testimony that the bulbs did not flower properly, that while they appeared in good condition on the day after delivery upon inspection by the defendants, one month later some brown specks were discovered, that Mr. Rotteveel, the expert, was then called in to examine them. It also included testimony by the expert that when he examined the bulbs in the two cases in which the specks were discovered, he found that the bulbs were grown beyond their capacity in Holland, so that they would dry up and 'destory the usefulness of the bulb'; that they were not merchantable, that some of the tulip bulbs were 'not worth planting'; that he advised the defendants not to plant them, and the defendants' testimony that these two cases were destroyed. As to the delay in giving notice of the breach, the defendants offered testimony that the defective character of the bulbs could not be discovered until flowering time some months after October 18, 1960, the delivery date, together with testimony by the expert that it could not be discovered except by cutting them open, and that when he cut some open about the middle of November he discovered this condition, but it would not be observable a month earlier to the extent that it would be later on since it develops as the season progresses; that it was the custom of the trade to inspect the Easter flowering and that Anthony Vandenberg, on behalf of the plaintiff, did make such inspection thirty-five days before Easter, and that defendants did not learn of the defect until the plants were taken to the greenhouse and uncovered about thirty-five to forty days prior to Easter in the case of the tulips, and about twelve days to three weeks before Easter in the case of the hyacinths.
In making these rulings, the court took the position that no testimony as to what happened more than eight days after the delivery date was admissible even though it related to a condition existing at the time of shipment but not discoverable until later. The effect of these rulings was to eliminate the evidence in support of the defendance and the counterclaim, and the verdict was for the plaintiff in the amount of its claim.
1. In limiting the warranties as he did, the trial judge ignored the word 'otherwise' in the express warranty. We repeat the important language: 'The seller warrants the goods to be sound and healthy at the time of shipment but does not otherwise warrant flowering * * *.' While this means that flowering is not warranted unless the failure to flower results from an unsound or unhealthy condition of the bulbs at time of shipment, it is equally obvious that the seller does warrant that at the time of shipment the bulbs were capable of flowering properly. Since the defendants' evidence was that failure to flower properly resulted from a condition which existed at the time of shipment because the bulbs had grown beyond their capacity in Holland, the failure falls within the terms of the express warranty if the jury believes this evidence.
It is true that nothing which occurred after delivery which made the bulbs unfit or unmerchantable would be a breach of either the express or implied warranties. Indeed, the plaintiff insured against such mishaps during transit, and gave the defendants credit for an amount received from the insurer apparently on a claim that two rejected cases of the bulbs were damaged in transit. There was, however, no evidence that the damage to the bulbs involved in the suit occurred in transit. On the contrary, as we have noted, the defendants offered expert testimony tending to show that the defect for which the counterclaim is laid occurred prior to delivery and existed at the time of delivery.
The plaintiff argues (1) that the bulbs were inspected by persons who are inspectors for the Dutch and American Governments and were found to be sound, 1 and both the plaintiff and the Government of Holland go to great lengths to see that nothing is wrong with the bulbs being shipped because of the advantage to them in making sure that they ship only sound and healthy bulbs; (2) that so many things can happen after delivery that are not under the control of the plaintiff that it has the right to limit its warranty and there is therefore no implied warranty after this moment; and (3) that the defendants, as well as the plaintiff, have been in this business for a long time and know that no shipper of bulbs guarantees flowering results since that part of the growing process is strictly under the control of the grower and there are too many variables that could result in poor flowering.
None of these arguments, however, go to the admissibility of the evidence offered by the defendants, but only to its weight and credibility. Nor do they affect the proposition that if the failure to flower properly results from the unsound or unhealthy condition of the bulbs at the time of shipment the seller is liable under the express warranty in the contract. The case of Dutch Mill Gardens v. J. J. Grullemans and Sons, N. V., 238 S.W.2d 232, (Tex.Civ.App., 1951) is cited by plaintiff as being identical. In fact it is far from supporting the plaintiff's position. It...
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...not bar claims against it for defective bulbs by requiring notice before the bulbs would normally bloom, Vanderberg & Sons, N. V. v. Siter, 204 Pa.Super. 392, 204 A.2d 494 (1964), Carbide could not require notice of a defect in its chemical products at a point in time at which it was imposs......
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...in Saxton's contract form to extend for six months or more its opportunity to inspect and to reject. Cf. Q. Vandenberg & Sons, N.V. v. Siter, 204 Pa.Super. 392, 204 A.2d 494 (1964); Neville Chemical Co. v. Union Carbide Corporation, 422 F.2d 1205 (3d Cir. 1970). As White and Summers point o......