Wedding v. Duncan

• Decision Date: 28 January 1949
• Parties: WEDDING et al. v. DUNCAN et al.
• Court: Kentucky Court of Appeals

220 S.W.2d 564

310 Ky. 374

WEDDING et al. v. DUNCAN et al.

Court of Appeals of Kentucky

January 28, 1949

Rehearing Denied June 14, 1949.

Appeal from Circuit Court, Henderson County; M. L. Blackwell, Judge.

Action by V. B. Duncan and another against Eugene Wedding and another to recover damages for breach of an express warranty. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Pentecost & Dorsey, of Henderson, and Wilson &amp Wilson, of Owensboro, for appellants.

King &amp Flournoy, of Henderson, for appellees.

LATIMER Justice.

Sometime in the latter part of May 1945, appellee, V. B. Duncan, a tenant farmer on the lands of his co-appellee, W. P.

Cooper, purchased from Eugene Wedding, alleged agent of Owensboro Grain Company, 15 bushels of Funk's G-515W seed corn for the purpose of planting. He planted this corn on 110 acres of his landlord's land in what is known as the Ohio River Bottoms. According to the record this corn germinated well, produced good stalk, good leaf, and the usual shoots or ears on the stalks. Prior to its maturity Duncan discovered that the kernels on the ear were sparse and had not filled out as they should have, due, as he concluded after consulting experts on hybrid seed corn, to lack of pollination resulting from inferior seed. The field of corn was marketed, however, and found to produce less than a 1/2 crop or about 30 bushels to the acre.

Duncan and his landlord, Cooper, filed this action against appellants, Eugene Wedding and Owensboro Grain Company, basing their claim to recover upon an express warranty. There is no claim for recovery on any ground of fraud, implied warranty, or violation of the statute governing the sale of seeds.

Upon trial judgment was returned in favor of appellees. Wedding and the Owensboro Grain Company, defendants below, prosecute this appeal.

It is first insisted that the demurrer to plaintiffs' petition should have been sustained. This contention seems to be based upon the theory that there is no allegation of warranty in the petition, and further because there is nothing in the alleged warranty that implies any knowledge on Wedding's part of the location, condition, fertility, or preparation of the soil in which this corn was to be planted; and that there was no allegation that Wedding knew, or could have known, where, how, or whether this corn would be planted, cultivated, and raised, nor what the weather condition or season would be. It becomes necessary, therefore, to state in substance the pertinent parts of plaintiffs' allegations.

It is alleged that V. B. Duncan in May 1945 approached the defendant, Eugene Wedding, at the office and place of business of the defendant, Owensboro Grain Company, Inc., for the purpose of purchasing seed corn, and that Eugene Wedding was advised that Duncan desired to purchase the hybrid seed corn for the purpose of planting and raising a crop of suitable corn for feeding and other commercial purposes upon the farming lands of the plaintiff, W. P. Cooper.

It was further alleged that Eugene Wedding, individually, and as the agent and manager of the defendant, Owensboro Grain Company, Inc., represented and warranted to V. B. Duncan that Funk's G-515W, a white hybrid seed corn, which was sold by defendant, Owensboro Grain Company, Inc., was suitable for such purposes, both as to kind and productivity, and represented that the Funk's G-515W was a new companion hybrid seed to G-527W hybrid seed corn and was adapted to growing in Kentucky; that it had an exceptional yield and field performance plus excellent milling qualities; that it was one of the outstanding corn varieties for farmers of the Southern corn belt, which included Kentucky; and that the seed corn commonly yielded 60 to 75 bushels per acre and in some cases as high as 80, 90, or even 100 bushels per acre.

It is further alleged that Duncan was not familiar with or knew anything about Funk's G-515W hybrid white seed corn, and that relying upon the skill and judgment of the defendants, and upon their representations and warranty, Duncan purchased 15 bushels of Funk's G-515W white hybrid seed corn, for which he paid $9.75 per bushel.

It is further alleged that Duncan prepared 110 acres of the farming land and planted the seed; that the seed germinated and made a good stand of corn; that Duncan cultivated the corn in a husbandlike manner; that the year was favorable and seasonable for growing corn; that there was sufficient rain and sunshine to cause an abundant yield, but that when appellee, Duncan, harvested the crop he discovered same to be inferior in quality, mixed with yellow grains, and the ears not filled out; that the 110 acres yielded only approximately 3000 bushels of corn or a little less than 30 bushels per acre; and that if the corn had been of the kind and had produced as warranted and represented by the appellants, the same would have yielded as least 70 bushels per acre.

It was further alleged that on account of the inferior quality of the corn, it cost approximately 20 cents a bushel to have the same shucked instead of the customary 12 cents per bushel, and that the market price of white corn was $1.29 but that appellees were able only to obtain the sum of $1.15 per bushel.

Appellants insist that if appellees were entitled to recover they must do so on an actual warranty and that the most that can be said about the alleged representation by Wedding is that it was merely a statement of the history of the production of the corn made for sales and introductory purposes and certainly was not a warranty. However, the test of whether a given representation is a warranty or mere expression of opinion or judgment is set out in Mantle Lamp Co. v. Rucker, 202 Ky. 777, 261 S.W. 263, 264, in which it was said:

'The test of whether a given representation is a warranty, or a mere expression of opinion or judgment, has been said to be whether the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely states an opinion or expresses a judgment about a thing as to which they may each be expected to have an opinion and exercise a judgment.'

Obviously, the allegations of plaintiffs' petition satisfy this test.

Appellants further insist that they were entitled to a peremptory instruction. This contention goes to or rests upon three grounds urged herein. The first goes to the agency of Wedding. It is insisted although the evidence tends to show that Wedding may have held himself out as agent of the Owensboro Grain Company, actually the agency was only circumstantially proven, and that the positive evidence of Wedding, Mr. O'Brien, President of the Owensboro Grain Company, Mr. and Mrs. Best, officials of the Columbiana Seed Company, and Mr. French, salesman for Columbiana, that Eugene Wedding was never agent of the Owensboro Grain Company in the handling of seed corn, outweighs and overcomes the evidence merely tending to show agency. We call attention to the proof.

Duncan testified that he had been dealing with Eugene Wedding and the Owensboro Grain Company for 10 or 12 years and that he had purchased from them many articles, including seed corn. He testified that he read the following advertisement in the Gleaner, a newspaper published in Henderson, Kentucky, which appeared in the May 1945 edition:

'For sale. Demand the best, proved by test, Funk's G hybrid seed corn. Large and medium flats.

Owensboro Grain Company

East Second Street,

Henderson, Kentucky,

E. Wedding, Agent,'

A clipping from the paper containing the above advertisement is filed with the record.

He stated that the bags of seed corn which he bought had tags on them which showed the corn had been shipped by the Columbiana Seed Company to the Owensboro Grain Company. These tags are filed as exhibits herein. He testified that the branch office of the Owensboro Grain Company is located at the end of Second Street in Henderson and has a sign on the building 'Owensboro Grain Company' and that the Owensboro Grain Company installed and maintained in that office a telephone listed in the directory as 'Owensboro Grain Company'. The evidence further shows that the account was carried on the books of Columbiana Seed Company against the Owensboro Grain Company.

The President of the Owensboro Grain Company testified that his company never dealt in seed corn at any time and said that Wedding was selling seed corn on his own and that his company received no commission on the sale of seed corn and had no knowledge thereof, but admitted on cross-examination that his company had maintained an office in Henderson for eight years and that Wedding was its agent until a fire in November, 1944; that they maintained on the top of the building in which the branch office was situated, a sign reading 'Owensboro Grain Company'; and that on the outside was a big sign reading 'Owensboro Grain Company Branch Office'. He admitted the telephone was listed in the telephone book in the name of 'Owensboro Grain Company'. He further admitted that after the fire of 1944, Wedding continued to buy grain in the building under the Owensboro Grain Company sign and that the Owensboro Grain Company financed it; that during all of this time they maintained a bank account in Henderson in the name of Owensboro Grain Company; and that Wedding could check on that account to pay farmers for grain he purchased, and could do so on through the year 1945.

The Bests of the Columbiana Seed Company also admitted that the seed corn was shipped to the Owensboro Grain Company and their account carried in its name but that this was done merely for convenience in keeping books.

Under the above facts it is obvious there is no merit in the contention that...