Ross v. Northrup, King & Co.

• Decision Date: 13 January 1914
• Citation: 156 Wis. 327,144 N.W. 1124
• Court: Wisconsin Supreme Court
• Parties: ROSS v. NORTHRUP, KING & CO.

156 Wis. 327

144 N.W. 1124

ROSS

v.NORTHRUP, KING & CO.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Vernon County; E. C. Higbee, Judge.

Action by Samuel C. Ross against Northrup, King & Co. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded, with directions to dismiss complaint.

The defendant is a wholesale dealer in garden and field seeds. It advertised its seeds quite extensively; such advertisements suggesting to prospective purchasers of seeds that they send for defendant's catalogue, and also advise it of the name of the prospective purchaser's local dealer. The plaintiff is a farmer who, in the spring of 1911, was intending to plant about 20 acres of tobacco. He saw one of defendant's catalogues in which was advertised “Comstock Spanish Tobacco Seed.” He desired to raise the variety of tobacco produced from this seed, and called on three local dealers in Viroqua in the spring of 1911 to purchase the same. None of these dealers had any of this seed in stock, so he called on a fourth dealer, one Morton, who also advised him that he did not have any of this seed on hand. The plaintiff then stated that he would himself order the seed from the defendant. Morton then informed him that he was handling some seeds of the defendant, and would send and get the tobacco seed for him, and it was finally arranged between them that Morton should order one pound of this variety of tobacco seed. The order was dated on March 27th. When the order was received, the defendant did not have any of this particular variety of seed on hand, and sent to Virginia for it. This order apparently was promptly filled, except that the tobacco seed which was sent in response thereto was not Comstock Spanish tobacco seed. It was not possible to tell from an examination of the seed itself that it was not of the variety ordered. The defendant shipped this seed to Morton on April 8, 1911, who thereafter notified the plaintiff of its arrival. The seed was taken by the plaintiff and planted by him, and proved to be an inferior variety of tobacco, or one which was not adapted to the soil in which it was planted. The defendant did not know of the circumstances under which the seed was ordered, and so sold the same to Morton in the ordinary course of business. Plaintiff brought action against the defendant to recover damages for breach of warranty. Other facts essential to an understanding of the issues in the case will be found in the opinion.

The jury returned the following special verdict:

“Question 1: Was the sale of the package of tobacco seed in question sold by the defendants to the plaintiff? Answer: Yes.

Question 2: Was there at the time of said sale a general custom in the Northwest, including Wisconsin, among seedsmen such as the defendants, to refuse to warrant seeds? Answer: Yes.

Question 3: If you answer question 2 “Yes,” then did the plaintiff have knowledge of the same at the time he purchased said seed? Answer: No.

Question 4: Was there a disclaimer printed upon the bag in which the seed was delivered to the plaintiff? Answer: No.

Question 5: Was the seed in question ‘Comstock Spanish’ tobacco seed? Answer: No.

Question 6: Did the plaintiff at or before the time of purchase of the seed in question have knowledge or information of the disclaimer printed in the defendant's catalogue or upon any of its literature or packages? Answer: No.

Question 7: If you answer question 5 “Yes,” then what would have been the reasonable and probable value of plaintiff's 1911 crop, had the seed in question been Comstock Spanish tobacco seed? Answer: $2,000.

Question 8: What was the reasonable value of plaintiff's 1911 crop as raised? Answer: $985.”

Judgment was entered on this verdict in favor of the plaintiff, and defendant appeals therefrom.

H. P. Proctor and C. W. Graves, both of Viroqua, for appellant.

Bunge & Bosshard, of La Crosse, for respondent.

BARNES, J. (after stating the facts as above).

The appellant argues at length that the relation of buyer and seller existed between the defendant and the storekeeper Morton, and also between the plaintiff and Morton, and that there was no privity of contract between the plaintiff and the defendant, and, there being no contract relation between them, there was no contract to breach, and of course no right of action for a breach.

The respondent contends (1) that Morton acted as the agent of both parties to the transaction, and (2), if this be not so, that he acted as the agent of the plaintiff, and that plaintiff as an undisclosed principal has the same right of action against the defendant that Morton would have had, had he himself planted the seed.

[1] The facts relied on by the plaintiff to show that Morton acted as the agent of the defendant in the transaction are wholly inadequate to show that the relation of principal and agent existed between those parties. The defendant advertised its seeds in the Wisconsin Agriculturist and other papers. Such advertisements requested prospective purchasers to send for its catalogue. A blank coupon to be used in ordering the catalogue was included in the advertisement. In the coupon there was a blank space in which was to be inserted the “local dealer's name,” and in the advertisement proper this sentence was used: “Use the coupon or write us a postal, giving the name of your dealer, and sign at the bottom of the card with your own name.” The language used advised the prospective purchaser that defendant sold its seeds to retail dealers, from whom they might be purchased by those desiring to plant them. We think it is too plain to warrant discussion that this advertisement did not make every retail dealer in seeds in the United States the agent of the defendant. Inasmuch as the plaintiff must contend in order to recover that the storekeeper acted as his agent, it is not very material for the purposes of the case whether or not it be said that he also acted as the agent of the defendant, because we think the same result would follow in either case.

In disposing of the case we will assume that the evidence was sufficient to warrant a court or jury in finding that the relation of buyer and seller did not exist between the plaintiff and Morton, and that Morton acted as the agent of the plaintiff, an undisclosed principal, in ordering the goods. This is the most favorable view for the plaintiff that the evidence will warrant.

[2] It is apparent that the material question in the case is whether the tobacco seed was sold to Morton with or without a warranty that it was true to description. Defendant knew nothing of the plaintiff in the transaction. Plaintiff's rights against the defendant are no greater than Morton's would be if he had been the real instead of the ostensible principal. This is frankly conceded by respondent in the brief filed, and advisedly so.

[3][4][5] Leaving any question of custom out of consideration, where a certain variety of seed is called for, and seed is furnished in response to such call, there is a warranty that it is true to description, unless the seller advises the purchaser that the sale is made without warranty. Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am. St. Rep. 916. There is no doubt that the vendor may sell without warranty. Leonard Seed Co. v. Crary Packing Co., 147 Wis. 166, 132 N. W. 902, 37 L. R. A. (N. S.) 79, Ann. Cas. 1912D, 1077. Were the goods so sold to Morton? He had the defendant's catalogue before him when he placed the order and ordered from it. He so testifies. The defendant knew that he ordered from the catalogue, because one of the two items called for was ordered by the catalogue number. Between the cover and the first page of the catalogue there was a blank order sheet for customers to detach and use in ordering seeds. Immediately above the blank spaces in which the order was to be written was a printed statement to the effect that defendant gave “no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds * * * they send out, and will not be in any way responsible for the crop.”

On the first page of the catalogue proper there was printed in large type the words “ General Suggestions to Customers.” There were a dozen such suggestions made; the first word or words in each instance, indicating the nature of the suggestion, being printed in large, heavy type. One of these headings consisted of the word “ Disclaimer” so printed, and immediately following it was a statement substantially like the one quoted above.

The two packages ordered from the defendant were wrapped in one bundle, and shipped by express. One side of the shipping tag contained the name and address of the consignee. On the reverse side there was printed in red ink and in conspicuous type the following words, which were underscored as indicated: “Northrup, King & Co. do not give, and their agents are forbidden to give, any warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds, bulbs, or plants they send out, and will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms, they are at once to be returned, and money paid for same will be promptly refunded.”

The goods were shipped on April 8th, and were followed by an invoice two days later. There was printed near the head of the invoice a statement like that contained in the catalogue, to the effect that the goods were sold without warranty. In reference to this invoice, the respondent claims that it was not received until after the seed had actually been delivered to the plaintiff. There is some testimony given by Morton to the effect that the invoice was not received until the day after the seed was delivered, and some testimony which would indicate that the seed had not been delivered when the invoice came. We accept the statement that there had been an actual delivery...