Germofert Mfg. Co. v. Cathcart

The opinion of the Court was delivered by Mr. Justice Fraser. This is a suit on the following note: “Winnsboro, S. C., November 4, 1908. “On or before the first of December, 1908, I promise to pay Germofert Manufacturing Co., or order, at Winnsboro Bank, eleven hundred seventy-two and 72-100 dollars, with interest at seven per cent, per annum, after matu *126 rity until paid, and all cost of collection, including attorney’s fees, not exceeding ten per cent., if collected by law or through an attorney at law. Balance due for 1,090 bags of fertilizer, sold to me by said payees. It is hereby expressly understood and covenanted, that the said Germofert Manufacturing Company sells said commercial manure as to its quality and effect on crops only on the guaranteed analysis, and I admit that every sack is branded according to law, and that the inspector’s tag is on every sack for which this note is given. And I in nowise hold payee responsible for practical results of said fertilizer on crops. And in consideration of the above I accept said fertilizers on these terms, and each of us, whether principal, security, guarantor, indorser or other party hereto, hereby severally waives and renounces, each for himself, demand, protest and notice of demand, protest and nonpayment.” The judgment was for the defendant and the plaintiff appeals, with several exceptions. All of the exceptions involve one question, to wit, Was evidence of the effect on crops admissible ? 1 The effect on crops was not a defense and evidence of effects on crops not admissible. The fertilizer was sold on a guaranteed analysis, and the note contained this provision: “And I in nowise hold responsible for practical results of said fertilizer on crops.” There was no attempt made to analyze the fertilizer. Ample provision is made by law to secure a reliable analysis. The defendant had agreed that the test of value should be made by analysis. No man can look at a crop (dead or alive) and tell what per cent, of ammonia or potash or other substance it contained. They did not pretend to do so. The defendant had agreed not to “hold payees responsible for practical results of said fertilizer on crops.” This evidence, and the charge responding to it, was in direct violation of the agreement. *127 2 It cannot be said that test of value by analysis is an unlawful contract, because the statutes recognize a test by analysis. The defendant signed a perfectly lawful contract, with ample protection afforded by law. The defendant cannot refuse to adopt the protection approved by law and offered by-his contract and be allowed to avail himself of a method of defense that he has agreed not to use. Some substances may kill because they are true to analysis. The judgment is reversed. Messrs. Justices Watts and Gage concur in the opinion of the Court. Footnotes [1] Footnote. — Expressed warranty excluding implied warranties in contract of sale, see note in 33 L. R. A. (N. S.) 596.