Wapato Fruit & Cold Storage Co. v. Denham

• Citation: 126 Wash. 676,219 P. 30
• Decision Date: 11 October 1923
• Docket Number: 17812.
• Court: United States State Supreme Court of Washington
• Parties: WAPATO FRUIT & COLD STORAGE CO. v. DENHAM.

219 P. 30

126 Wash. 676

WAPATO FRUIT & COLD STORAGE CO. v. DENHAM.

No. 17812.

Supreme Court of Washington

October 11, 1923

Department 2.

Appeal from Superior Court, Yakima County; Geo. B. Holden, Judge.

Action by the Wapato Fruit & Cold Storage Company against J. P Denham, wherein defendant by answer set up a claim for damages against plaintiff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Joseph C. Cheney, of Yakima, for appellant.

Grady Shumate & Velikanje, of Yakima, for respondent.

FULLERTON J.

In this proceeding, the Wapato Fruit & Storage Company, a corporation, as plaintiff, sued J. P. Denham upon two causes of action; the one to recover a balance due for the storage of certain grain, and the other to recover the purchase price of some 75 sacks of potatoes sold and delivered by it to Denham. Denham, for answer, made no denial of the allegations of the complaint, but set up affirmatively that the plaintiff was a dealer in seed potatoes; that he approached the plaintiff for the purpose of purchasing an early variety of such potatoes for the purpose of planting on his farm; that the plaintiff recommended a variety it had known as Early Yorks, and that on the plaintiff's recommendation that they were a good variety, sound and free from disease, and would germinate and grow, purchased the same. He further alleged that he planted them in their proper season, in suitable soil, in a good and husbandmanlike manner, but that the potatoes failed to grow, and that he realized nothing for his labor, lost the use of his land, and was damaged thereby in the sum of $2,410. He prayed that the plaintiff take nothing by its complaint, and that he have and recover judgment against it for $2,225.70, the difference between the plaintiff's claim and the amount in which he was damaged because of the claimed breach of contract.

The cause started as a trial before the court sitting with a jury. The defendant having the affirmative of the issue assumed the burden of proof, and introduced testimony in substantiation of the allegations of his answer. At the conclusion of his testimony, the court sustained a challenge to the sufficiency of his evidence to constitute a defense, and directed the jury to return a verdict in favor of the plaintiff for the amount of its demand. From a judgment entered on the verdict, Denham appeals.

The evidence on the part of appellant tended to show that he owned a farm in the vicinity of the respondent's place of business, which was under the charge of one Du Puis. Desiring to plant some eight and one-half acres of his land to an early variety of potatoes, he went to appellant, and made known his desire. The appellant, through an agent in charge of its business, showed him some three varieties of early potatoes, telling him that either variety would be suitable for his purpose. A selection was finally made of a variety known as Early Yorks. These were then in sacks, and a number of the sacks were opened and the potatoes examined; the potatoes on inspection appearing to be sound and firm and of a good quality. The agent told the appellant where the potatoes had been grown, and told him also that the grower had recommended them as good seed potatoes. He also told him that they had been examined by another potato grower, who had at one time acted as county agricultural agent, and had been pronounced by him to be good seed potatoes. It was estimated that some 75 sacks of the potatoes were necessary to plant the ground the appellant desired to plant, and a contract for the purchase of that number was entered into.

Some time later Du Puis, the appellant's farmer, went to the warehouse of the plaintiff for the potatoes, and 75 sacks were delivered to him, which he hauled to the appellant's farm. Du Puis was an experienced farmer, and an experienced potato grower. In preparing the potatoes for planting he discovered that a quantity of them had decayed, and a quantity, which he estimates as equal to 5 sacks, he threw away entirely. On cutting the others into suitable sizes for planting he discovered that a large quantity of them were diseased, and in the process of decay. This quantity he estimated as three-fourths of the whole. Du Puis, as an experienced potato grower, concluded the potatoes were unfit for planting, and before doing so called the appellant upon the telephone, told him of their condition, and advised him not to plant them. He testifies that the appellant told him to plant them despite their condition, as the respondent had guaranteed them. The potatoes were then planted, but failed to grow. The testimony is that only about one-fourth of them came through the ground, and, of these, a large proportion were sickly looking, and died on the first application of water put on the land for irrigating purposes. No further attempt was made to cultivate the remainder, and no crop was...