Venie v. South Central Enterprises, Inc.

• Decision Date: 22 March 1966
• Docket Number: No. 8446,8446
• Citation: 401 S.W.2d 495
• Parties: Paul VENIE and Winifred Metzger, Plaintiffs-Respondents, v. SOUTH CENTRAL ENTERPRISES, INC., a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 495

401 S.W.2d 495

Paul VENIE and Winifred Metzger, Plaintiffs-Respondents, v. SOUTH CENTRAL ENTERPRISES, INC., a corporation, Defendant-Appellant.

No. 8446.

Springfield Court of Appeals, Missouri.

March 22, 1966.

James H. Keet, Jr., Theodore C. Salveter, Jr., Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendant-appellant.

Paul L. Bradshaw, O. J. Taylor, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiffs-respondents.

HOGAN, Judge.

This is an action for breach of an express warranty made by the defendant corporation in connection with the sale of a chemical weed killer. The cause was tried to the court without the intervention of a jury, and the plaintiffs had judgment for $3,539.98. The defendant has appealed.

At the time in question, the plaintiffs were raising strawberries commercially on a small tract of land owned by Mrs. Metzger. Mr. Venie is her nephew, and during the period involved here they operated under an informal partnership agreement whereby Mrs. Metzger furnished the land and Mr. Venie was in charge of cultivation. The extent of Mr. Venie's formal or technical education is not shown, but he had been 'in the strawberry growing business' since 1937, and said he was 'versed in the raising of crops, (but was) not a chemist.'

The defendant corporation is, among other things, a retail supplier of agricultural chemicals. Mr. Dave Archer, the defendant's protagonist in this controversy, was the corporation's 'Divisional Merchandising Manager, Chemicals': he was employed to sell agricultural chemicals, including herbicides. Mr. Archer has received the bachelor's and master's degrees in Agricultural Education from the State University; he has taught Vocational Agriculture and has done 'some work' with 'strawberries and all fruits' at the State Fruit Experiment Station.

Weeds, in Mr. Archer's words, are 'the big problem with strawberries.' Weed infestation not only prevents or impedes the growth of strawberry plants by competing with them for moisture and nourishment, but makes the berries difficult to pick. During the 1961--1962 growing season, the plaintiffs were having trouble with weeds, and their efforts to control them led to this action.

To conserve space, we will not recite the evidence concerning the parties' dealings in detail. The gist of plaintiffs' claim was that Mr. Venie informed the defendant through Mr. Archer that he needed a herbicide which, if properly applied, would control the weeds in his strawberry patches without damage to the plants themselves. The plaintiffs' position was--and their proof tended to show--that Mr. Archer attempted to locate a suitable preparation and finally sold them a chemical weed killer known as 2, 4, 5--T upon an express oral warranty that if it was properly applied it would kill the weeds and would be 'perfectly safe for strawberries.' Their evidence was further that they did apply the herbicide by conventional methods, as directed by the defendant, but that the 2, 4, 5--T not only destroyed the weeds but most of the strawberry plants as well. The defendant, while it generally admitted making the sale and the fact of damage, categorically denied making any warranty and maintained that if the 2, 4, 5--T had been properly applied at a time when the strawberry plants were dormant, there would have been no damage whatever.

The case has been briefed and argued by both parties with exacting attention to detail. Each emphasizes a different aspect of Rule 73.01(d), ¹ which defines the extent of appellate review in court-tried cases. As the appellant says, Rule 73.01(d) contemplates a review of the whole case upon its merits, and not a mere determination whether the trial court's findings are supported by substantial evidence. Further, the deference accorded the trial court's findings is precisely that, and not a matter of constitutional or statutory inhibition. Cross v. Gimlin, Mo., 256 S.W.2d 812--813(2, 3); Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129(1, 2). On the other hand, where the evidence is conflicting and close, and particularly where the decision depends upon conflicting oral testimony and the credibility of witnesses, the appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been otherwise. Leggett v. Missouri State Life Insurance Co., Mo., 342 S.W.2d 833, 850(2); In re Petersen's Estate, Mo., 295 S.W.2d 144, 148(3). And an ancillary proposition which the appellant impliedly recognizes is that in reviewing a court-tried case the appellate court will not be particularly concerned with the reasons assigned by the trial court as long as it has reached a correct result. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318(12); Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1004, 291 S.W.2d 166, 170(1); Brewster v. Terry, 352 Mo. 967, 972, 180 S.W.2d 600, 602(1). With these rules in mind, we approach the defendant's assignment that the plaintiffs made no case either upon an express or implied warranty. The appellant also contends that the plaintiffs made no case upon any theory of negligence, but that is not really germane to this appeal, for the plaintiffs state their theory as being one of express oral warranty and argue the sufficiency of their evidence primarily from that viewpoint.

The first of defendant's specific contentions is that Mr. Archer made no statement which could be considered as a positive assertion of fact. The evidence material to this assignment is that in searching out a suitable herbicide Venie asked Archer 'how I could cure henbane and clover in strawberries with a spray that would be absolutely harmless to a berry plant as 24D or Craig would. But 24D or Craig would not cure henbane.' Mr. Archer was unable to recommend anything with that degree of selectivity but advised Mr. Vanie he would look into the matter. Apparently the two discussed this matter on several occasions, and, at least as Venie recalled, in January 1962 Archer said 'he had come up with a chemical that he had read about that would control both of them, both the weed and the clover.' Mr. Venie's testimony was that when he asked if the chemical was 'as safe as the other things I had been using,' Archer answered, 'Yes, use it; it is perfectly safe for strawberries.' On cross-examination, Mr. Venie repeated essentially the same testimony--that he had not asked for a guarantee but only if the spray Mr. Archer had in mind was safe to use, and 'he (Archer) told me he had a product, contained 2, 4, 5--T, that would control the henbane and clover and would be harmless to strawberries.' The plaintiffs also introduced in evidence a pamphlet sent to Venie by Archer in response to Venie's request for information. The pamphlet, which was prepared at the State University, purports to recommend chemicals suitable to control weeds in fruit crops. On the first page, the pamphlet bears Mr. Archer's notation, 'Paul, see last page.' The last page, under the general heading 'Strawberries (continued) Special Weed Problems,' lists chemicals recommended for the control of chickweed and henbit in strawberry patches, and bears the notation 'Also 245--T.' This was sent to Mr. Venie in January 1962 prior to the purchase of the weed killer.

While this summary of the evidence on this particular point--that there was no specific representation amounting to a warranty--is admittedly incomplete, we believe the most that can be said is that there was a disputed factual question whether Mr. Archer, knowing the plaintiffs' special needs, represented that the spray he sold Mr. Venie was a selective weed killer which would control weed growth without damage to the strawberry plants. That question could have been resolved either way, depending upon whether the trial court chose to believe Mr. Venie or Mr. Archer. It may be that Mr. Archer did not intend his statements to constitute an express warranty, and that he did not, as counsel argues, use the word 'guarantee,' but the creation of an express oral warranty, at least under the law applicable here, did not require the use of any particular term or technical words, but only that there be a positive affirmation or representation of fact by the seller relating to the subject matter of the sale. Turner v. Central Hardware Co., 353 Mo. 1182, 1189, 186 S.W.2d 603, 606--607(5--7), 158 A.L.R. 1402, 1408. No specific intention was required on the seller's part other than to make a positive affirmation of fact, Charles F. Curry and Company v. Hedrick, Mo., 378 S.W.2d 522, 536(16); Turner v. Central Hardware Co., supra, 353 Mo. at 1192, 186 S.W.2d at 608(14), 158 A.L.R. at 1410, and indeed the existence and nature of an express warranty vel non was a matter of inference from the language used, considering the surrounding circumstances. Stone v. Farmington Aviation Corp., 363 Mo. 803, 807, 253 S.W.2d 810, 812(2, 3).

The defendant also maintains that because Venie was equally as familiar with the properties of 2, 4, 5--T as Archer, the record furnishes no basis for a finding that the plaintiff reasonably relied on Mr. Archer's representation, even if one was made. In support of this argument, the appellant cites, among other cases, Dotson v. International Harvester Co., 365 Mo. 625, 285 S.W.2d 585. That case involved a claim for breach of warranty concerning a two-row tractor-drawn corn planter. One of the buyers' numerous claims in that case was that they told the defendant they 'wanted a corn planter that would plant this corn nine inches apart, and that we could use at high speed, and that would put the fertilizer down in the same operation.' The defendant had then said, '(T)his planter will be especially suitable for your use.' The plaintiffs maintained that this representation constituted an express warranty of fitness for a particular purpose. In commenting upon the inferences reasonably permissible from the facts, the court ...