Tisdale v. Kerr McGee Chemical Corp., 20153

• Decision Date: 22 January 1976
• Docket Number: No. 20153,20153
• Citation: 221 S.E.2d 531,266 S.C. 64
• Court: South Carolina Supreme Court
• Parties: Eliose T. TISDALE, Respondent, v. KERR McGEE CHEMICAL CORPORATION and McNair Seed Company, Appellants.

Page 531

221 S.E.2d 531

266 S.C. 64

Eliose T. TISDALE, Respondent, v. KERR McGEE CHEMICAL CORPORATION and McNair Seed Company, Appellants.

No. 20153.

Supreme Court of South Carolina.

Jan. 22, 1976.

C. Dexter Powers, Wright, Scott, Blackwell & Powers, Florence, and LaNue Floyd, Kingstree, for appellants.

Allen C. Pate, and George W. Keels, Florence, for respondent.

LITTLEJOHN, Justice:

This breach of warranty action was brought in the Williamsburg County Civil Court by Eloise Tisdale (plaintiff) against defendants, Kerr-McGee Chemical Corporation (Kerr-McGee) and McNair Seed Company (McNair), to recover actual damages of $8,091.75, allegedly suffered as a consequence of purchasing 140 bags of defective soybean seed from Kerr-McGee. Kerr-McGee, a retailer, had purchased them from McNair, a wholesaler.

Upon trial of the case, the jury rendered a verdict for plaintiff in the amount of $4,068.51. Defendants have appealed, alleging error by the trial judge in refusing their motions for nonsuit, directed verdict and judgment n.o.v.

We are of the opinion that the trial judge properly overruled the motions and affirm the verdict of the lower court. The sole issue before us is whether the evidence made issues of fact for the jury, or only questions of law for the judge.

Plaintiff alleged that the seed she purchased were defective in that they failed to germinate, as represented by defendants, requiring plaintiff to purchase other seed and replant, which planting produced a short crop.

The answers amounted to a general denial. In addition, the answers alleged misuse of the seed, that poor farming techniques were used, and that plaintiff's loss resulted from an Act of God. They specifically denied a breach of warranty.

The evidence discloses that McNair sold two lots of soybean seed to Kerr-McGee in 1970. In April of 1971, Kerr-McGee sold 100 fifty-pound bags of these seed to the plaintiff for planting. Her son, who operated her farm, planted them in May of 1971. By June, a 'stand' of soybeans had not sprouted and come up in a normal fashion. It was the testimony of plaintiff's son that only about 10% Of the seed had germinated.

Plaintiff bought 40 additional fifty-pound bags of seed from Kerr-McGee in June. She and her son both testified that they also bought seed from another source in June, which were used in replanting 120 acres that month. Defendants attempted to discredit plaintiff on this point, but it was established that a replanting took place and that, later that same crop year, plaintiff returned 44 bags, which she had purchased from Kerr-McGee, as unusable.

The replanting yielded only 20 bushels instead of 40 bushes per acre, which plaintiff claimed was a normal yield.

Plaintiff's son described his method of planting the seed. He testified that he planted about fifty pounds to the acre, and that other farmers in his area had a good stand of soybeans in the same month of June.

A neighbor, with 30 years of farming experience, testified that he saw plaintiff's field and thought it had been properly planted, and that the land did not have a problem with excess water because of its elevation. He examined the seed after the first planting and observed that they had rotted in the ground. He also testified that he planted the same type of seed that year, using fifty-pounds per acre, and had no problem getting a good stand.

A county agent testified for plaintiff that he had a test made of seed submitted to him by plaintiff in 1972 (some 19 months after the seed were produced) which tested out as having a germination rate of 12%. This seed, plaintiff claims, she purchased from Kerr-McGee in April or June of 1971. By state law, producers...