Tomita v. Johnson, 5388

• Court: United States State Supreme Court of Idaho
• Writing for the Court: MCNAUGHTON, J.
• Citation: 290 P. 395,49 Idaho 643
• Docket Number: 5388
• Decision Date: 25 July 1930
• Parties: G. TOMITA, Appellant, v. C. F. JOHNSON, Respondent

290 P. 395

49 Idaho 643

G. TOMITA, Appellant,
v.
C. F. JOHNSON, Respondent

No. 5388

Supreme Court of Idaho

July 25, 1930

SALES-SALE OF SEED-BREACH OF WARRANTY-RIGHT OF ACTION-TIME OF ACCRUAL-MEASURE OF DAMAGES-APPEAL AND ERROR-COURT RULES-FAILURE TO COMPLY WITH-FILING OF TRANSCRIPT-DISMISSAL.

1. Where application for order, directing reporter to prepare transcript, was not made within five days after perfecting appeals, appeals are dismissed (supreme court rules 16, 23, 25, 26; C. S., secs. 6886, 7166).

2. No transcript of record, showing date of filing notice and undertaking on appeal, having been served on respondent and filed within sixty days after perfection of appeals, appeals were dismissed (supreme court rules 16, 23, 25, 26; C. S., secs. 6886, 7166).

[49 Idaho 644]

3. Inability to procure money to pay for transcript does not excuse failure to apply for order for reporter's transcript, as regards dismissal of appeal (supreme court rules 16, 23, 25, 26; C. S., secs. 6886, 7166).

4. Where potato grower was not misled as to quality of seed, at time of planting, by representation of seller, he could not recover crop damage resulting from diseased seeds.

5. Where seed buyer makes known to seller needs for planting, and selects seed upon seller's recommendation, there arises implied warranty that seed is suitable for purposes intended.

6. Right of action for breach of warranty accrues at time purchaser ascertains that seed is not as represented.

7. Damages cannot be enhanced by purchaser's acts subsequent to ascertaining that seed is not as represented.

8. If grower plants seeds with full knowledge of actual kind, condition, and quality, planting constitutes independent intervening act and immediate and operating cause of resulting damage.

9. Grower, planting seeds with full knowledge of actual kind, condition and quality, cannot recover for crop failure.

10. If grower plants seeds with knowledge of kind, condition and quality, measure of damages for breach of warranty is difference in value between seed received and kind represented.

11. Where seed buyer proved no damages, excepting crop failure, resulting from knowingly planting defective seed, nonsuit held properly granted.

12. All issues of fact in equity suits are triable by court, and such procedure is not unconstitutional. (Const., art. 5, sec. 1.)

13. Jury may be called to assist court in equity suit, but verdict is only advisory. [49 Idaho 645]

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm., A. Babcock, Judge.

Action in damages and for relief. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

Turner K. Hackman, for Appellant, cites no authorities on points decided.

James R. Bothwell and W. Orr Chapman, for Respondent.

Consequential damages,--the difference in value between the value of potatoes grown from diseased seed and the value of like potatoes grown from seed free from disease, and true to name cannot be recovered when the party planting the seed prior to planting has full knowledge that the seed is diseased, and not true to name, and is not worth planting, for the obvious reason that the buyer's own conduct was an intervening and the immediate and operating cause of such damage. (Buckbee v. P. Honenadel, Jr., Co., 224 F. 14, Ann. Cas. 1918B, 88, 139 C. C. A. 478, L. R. A. 1916C, 1001; Wapato Fruit etc. Co. v. Denham, 126 Wash. 676, 219 P. 30; Oliver v. Hawley, 5 Neb. 439; O. C. Barber Min. & Fertilizing Co. v. Brown Hoisting Mach. Co., 258 F. 1, 169 C. C. A. 139, and cases there cited; 24 R. C. L., sec. 542, p. 264; Dunn v. Bushnell, 63 Neb. 568, 93 Am. St. 474, 88 N.W. 693; Daley v. Irwin, 56 Cal.App. 325, 205 P. 76.)

In order to maintain an action for breach of warranty, it must be shown that the warranty was relied on; hence where the evidence fails to show any reliance, no recovery for breach will be allowed and a motion for nonsuit should be sustained. (Stanley v. Day, 185 Ky. 362, 215 S.W. 175; Haines v. Rowland, 35 Idaho 481, 207 P. 428.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

We have here an appeal from a judgment upon three causes of action entered October 13, [49 Idaho 646] 1928; an appeal from an order denying a new trial, dated November 26, 1928; and an [290 P. 396] appeal from a decree and...