Strickler v. Pfister Associated Growers, Inc.
| Decision Date | 17 July 1963 |
| Docket Number | No. 15164.,15164. |
| Citation | 319 F.2d 788 |
| Parties | Ellsworth STRICKLER, Plaintiff-Appellant, v. PFISTER ASSOCIATED GROWERS, INC., a Corporation Whose Home Office is Aurora, Illinois, a Delaware Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. Granville Clark, Russellville, Ky., for appellant.
Charles L. Sullivan, Clarksdale, Miss., Sam R. McCracken, Jr., Franklin, Ky., Talbott, Sullivan & Dunbar, Clarksdale, Miss., on brief, for appellee.
Before CECIL, Chief Judge, MILLER, Circuit Judge, and FOX, District Judge.
Plaintiff brought this action in the state court to recover damages in the amount of $12,000.00 for alleged breach of warranty by the defendant in connection with a contract for the production of seed corn. The action was removed to the United States District Court, where it was tried to the Court without a jury. The District Judge found for the defendant. This appeal followed.1
Sometime prior to the 1959 corn growing season, the plaintiff, Ellsworth Strickler, a farmer in Logan County, Kentucky, entered into a written contract with the defendant, Pfister Associated Growers, Inc., to grow 220 acres of foundation plants for the production of a hybrid seed corn designated as No. 633. Under the contract the defendant agreed to deliver the foundation seed required and the plaintiff agreed to furnish the land and to plant and cultivate the growing crop in a husbandlike manner. Defendant was to supervise the planting, cultivation and detasseling of the corn. Plaintiff was to harvest the corn on dates determined by defendant and deliver to the defendant all corn acceptable to the defendant for seed purposes, for which the defendant agreed to pay $1.15 per bushel, provided that if the Chicago grain price was more than this, it would pay the higher price.
In the performance of the contract, plaintiff planted 50 acres of male corn and 170 acres of female corn. The female corn was to be detasseled by the defendant in order that the 50 acres of male corn would pollinate the female corn and thereby produce the hybrid strain No. 633, which the defendant was to purchase. Although the pollen plants produced 87 bushels of grain per acre, the seed producing plants did not fill out adequately and produced only 42 bushels per acre. Plaintiff claims that 87 bushels per acre would have been the normal yield for the 170 acres of female corn if the seed corn had been fit for the purposes for which it was sold, and that the reduced yield was because the seed corn was not fit for such purposes. The complaint sought recovery for the value of this difference of 45 bushels per acre for the 170 acres of female corn, making a total of 7650 bushels.
The action does not involve the sale of seed by the defendant to the plaintiff, but, on the contrary, involves a bailment or a joint venture. The complaint rests upon the alleged breach of an implied warranty. At the time of trial the complaint was amended to allege a breach of an express warranty by stating that the defendant represented to the plaintiff that the yield of the corn would be comparable to commercial field hybrid corn and that "this was generally understood in the industry."
We fail to find anywhere in the written contract an express warranty. The plaintiff on cross-examination admitted that he could not point to any provision of the contract that constituted such a warranty. Parole evidence is inadmissible to vary the terms of a written contract. Tross v. Bills' Executrix, 189 Ky. 115, 120, 224 S.W. 660; Differential Steel Car Co. v. MacDonald, 180 F.2d 260, 270, C.A.6th. Plaintiff has no cause of action for breach of an express warranty.
There is more merit to plaintiff's contention that the transaction included an implied warranty of fitness. Graves Ice Cream Co. v. Rudolph W. Wurlitzer Co., 267 Ky. 1, 4, 100 S.W.2d 819; Sears, Roebuck & Co. v. Lea, 198 F.2d 1012, 1014, C.A.6th. However, these cases also hold that the parties can expressly stipulate against an implied warranty, in which event the rights of the parties are confined to those expressed in the contract.
Paragraph 9 of the contract provided, "The Company, at its own discretion, may abandon the seed field, or any part of a seed field, covered by this agreement because of improper detasseling, damage caused by windstorm, hail, excessive rainfall, pests, insects, or for any other reason which may seem justified to company."
The District Judge was of the opinion that this provision of the contract, considered in connection with the other provisions, meant that the risk of loss was assumed by the plaintiff and that any implied warranty had been negatived by the express terms of the contract. He aptly stated that it was not possible for the same event to create a right in the defendant to abandon the contract and at the same time create a right in the plaintiff to recover on a warranty by the defendant. He rejected plaintiff's claim for breach of an implied warranty. We concur in the ruling.
If we assume, contrary to what we have hereinabove ruled, that there was an implied warranty of fitness in the transaction, we still fail to find merit in the appeal. The District Judge found as a fact that the plaintiff failed to prove that the seed was defective. He pointed out that according to the evidence, there are 24 separate factors which affect plant development: moisture, temperature, essential nutrient compounds, past cropping history of the land, and others; that there are an infinite number of environments presented by the inquiry; that the efficacy of the seed is only one factor in this infinity; and that there are too many variables which influence the process of corn development to pin the blame for poor yield upon any single one of these. The testimony of Dr. Frank E. Loeffel, Associate Professor of Agronomy at the University of Kentucky, H. E. White, Sr., and Jimmy Wayne Tuck supported this finding of the District Judge. Although there was a conflict in the evidence on this issue of fitness, the finding is not clearly...
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...Joint Appendix at 148.13 Joint Appendix at 149.14 Joint Appendix at 595.15 The language of this court in Strickler v. Pfister Associated Growers, 319 F.2d 788, 790 (6th Cir. 1963) is equally applicable to the case sub judice.It is not enough that we might give the facts another construction......
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...of the District Judge. Such a conclusion on our part does not make the finding 'clearly erroneus.' " Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 790 (6th Cir.1963); see also Anderson, 470 U.S. at 573-74, 105 S.Ct. at Thus, by its very nature, analysis under Rule 41(b) cente......
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...to amend under the particular circumstances of the case rests in the sound discretion of the trial judge, Strickler v. Pfister Associated Growers, Inc., 319 F. 2d 788 (6th Cir. 1963). Rule 15(a), however, provides that "leave shall be freely given when justice so requires." In the absence o......