Tomita v. Johnson

• Decision Date: 25 July 1930
• Docket Number: 5388
• Citation: 290 P. 395,49 Idaho 643
• Parties: G. TOMITA, Appellant, v. C. F. JOHNSON, Respondent
• Court: Idaho Supreme Court

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).

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.

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, 1928; an appeal from an order denying a new trial, dated November 26, 1928; and an appeal from a decree and judgment on a fourth cause of action entered March 23, 1929.

A motion has been made to dismiss the appeals from the judgment of October 13th, and the order of November 26th, on the ground that an application for an order of the district judge directing the reporter to prepare reporter's transcript was not made within five days after perfecting the appeals; also that no transcript of the record showing the date of the filing of the notice and undertaking on appeal was served on respondent and filed within sixty days after the appeals were perfected as required by rules 16, 23 and 25 of this court, and C. S., secs. 6886 and 7166. The motion is pursuant to rules 16 and 26 of this court. The application for an order for reporter's transcript for these appeals was not made until March 25th, 1929. No extension of time was asked or procured. Upon this motion being made, appellant asks that the delay be excused on the ground that appellant did not earlier procure the order because of inability to procure the money with which to pay for such transcript.

This does not excuse the failure to make the application. It is thought the rule cannot affect its purpose of avoiding delays if it may be brushed aside when convenient. Under the authority of Walton v. Clark, 40 Idaho 86, 231 P. 713, and Grand View State Bank v. Thams, 45 Idaho 566, 263 P. 1000, the appeal from the judgment of October 13th, and the appeal from the order refusing a new trial, dated November 26th, are dismissed.

However, for a better understanding of the questions arising on the appeal from the judgment entered March 23d, we have examined the entire record and find no error. In this behalf it may be said: From the evidence offered by the plaintiff at the trial it appears the difficulty and dispute which was litigated in the first and main cause of action grew out of defective seed potatoes sold by respondent and planted by appellant.

The record discloses that the respondent was the owner of the land on which appellant as tenant planted the seed potatoes in question. The rental was one-half the crop. Under the terms of the lease seed planted was subject to the landlord's approval. The landlord, who is respondent, furnished half and recommended and sold to appellant the other half of the seed potatoes in question. A poor crop resulted as a consequence of planting this seed.

The substantive law applicable is the law of warranty. The evidence discloses that appellant was an experienced potato grower, having had seventeen years' experience; that he knew at sight that the Rurals involved were not true to name as represented. He knew that part of the seed had spoiled, and when he cut into them preparatory to planting he knew most of the balance were diseased. That he was in nowise misled at the time of planting by any representation theretofore made by respondent is an outstanding fact established by appellant's direct testimony. Under these facts he cannot recover crop damage resulting from planting the diseased seed in question.

True where one desiring seed makes known to a dealer his needs for planting, and a selection of seed is made upon...