Smith v. Oscar H. Will & Co.

• Decision Date: 29 July 1924
• Citation: Smith v. Oscar H. Will & Co., 51 N.D. 357, 199 N.W. 861 (N.D. 1924)
• Court: North Dakota Supreme Court
• Parties: SMITH v. OSCAR H. WILL & CO.

51 N.D. 357

199 N.W. 861

SMITH

v.OSCAR H. WILL & CO.

Supreme Court of North Dakota.

March 21, 1924.

Rehearing Denied July 29, 1924.

Syllabus by the Court.

In an action for breach of contract where plaintiff ordered Turkestan alfalfa seed, and defendant agreed to deliver Turkestan alfalfa seed, but by mistake shipped sweet clover seed, it is held, that plaintiff may recover for breach of contract for failure to deliver Turkestan alfalfa seed as agreed, and that questions of warranty or of nonwarranty, through agreement or common usage, concerning the seed have no application.

Appeal from District Court, Burleigh County; Jansonius, Judge.

Action by H. C. Smith against Oscar H. Will & Co. From a judgment for plaintiff, defendant appeals. Affirmed.Newton, Dullam & Young, all of Bismarck, for appellant.

Edward S. Allen and Theodore Koffel, both of Bismarck, for respondent.

Statement.

BRONSON, C. J.

This is an action to recover damages for breach of a contract for the sale of certain seed. Defendant has appealed from the judgment entered upon a verdict returned in plaintiff's favor. The facts are: Plaintiff operated a farm near Pollock, S. D. Defendant conducted a seed-house at Bismarck, N. D. In April, 1920, plaintiff, while in Bismarck, visited defendant's establishment. He inquired about Grimm alfalfa seed, with which he was familiar. Defendant showed him a sample of Grimm alfalfa seed. Defendant also urged him to try Turkestan alfalfa seed for the reason that it grew more luxuriantly and made more forage. Defendant had a considerable quantity of this Turkestan alfalfa seed in grain sacks there at the time. Defendant quoted to plaintiff a price of 60¢ per pound for Grimm alfalfa seed, and 50¢ for Turkestan. Plaintiff had previously bought seed from a party in South Dakota. His seed had been ordered but it had not come.

When plaintiff returned to his farm he found the seed was not there, so he wired to defendant to send C. O. D. Turkestan seed. Three different telegrams were sent, covering altogether orders for Turkestan alfalfa seed and Grimm alfalfa seed, to be sent C. O. D. Defendant proceeded to comply with the orders and sent seed to defendant at Pollock, S. D. The total amount of the purchase price for the seed was $1,000, which amount was paid by plaintiff for each shipment within a short time after such shipment. The seed so shipped by defendant was seeded by plaintiff, through his foreman and employees, on his farm. From this seed so furnished a luxuriant crop grew. Plaintiff was under the impression that the crop so produced was alfalfa. He was astonished by the luxuriance of the crop from this so-termed Turkestan alfalfa seed. Neighbors in the vicinity came to see the luxuriant crop. It was viewed by the county agricultural expert. Plaintiff treated this crop as if it were alfalfa. During the next season in 1921, he discovered that this crop from the so-termed Turkestan alfalfa seed was not alfalfa at all but was sweet clover.

Then he came to Bismarck and interviewed defendant. He urged that defendant send a man down to look at this crop and to salvage it if there was any salvage to it. He did not have the machinery to handle a clover crop. He tried to cut some of it and to mow some of it but he was unable to use or dispose of this crop. Defendant advised plaintiff that it would take plaintiff's word as to whether there was any salvage of the crop to be had. No settlement was made between plaintiff and defendant, as a result of this trip to Bismarck. This lawsuit resulted.

Defendant, in its answer, relies upon a nonwarranty clause as to the description, quantity, productiveness of any seeds sold by defendant, which nonwarranty clause was specified in its catalogue, upon its shipping tags, and on its letter heads and invoices; also of the general usage and custom of the nursery trade to sell seed subject to such general nonwarranty. In its evidence, plaintiff testified that he had never seen the catalogue of the defendant house and knew nothing of this general warranty upon the tags, the invoices or the letter heads until he came to Bismarck upon his second visit. It is the contention of the defendant upon this appeal that whatever warranty might ordinarily be implied in the sale of seed, the defendant upon the record was wholly absolved therefrom by reason of the general nonwarranty clause disclosed as above stated, and also by reason of the general custom existent among seed men for such nonwarranty.

Opinion.

A cause of action was established, in our opinion, not for breach of warranty, but for...