J. S. Elder Grocery Co. v. Applegate

Hart, J. (after stating the facts). Counsel for appellants urge as error the admission of certain testimony before the jury given by appellee. Appellee was permitted to testify that he planted some soy beans about the 21st of April, 1920, and they made a good crop. He was also permitted to testify that he sowed Whippoorwill peas about the 10th of May, 1920, and made a pretty good crop of. them. Counsel for appellee claims that this testimony was competent to show that appellee had properly prepared his ground and planted the seeds in due season. He contends that the fact that they grew in the same soil under the conditions testified to is a circumstance tending to show that the failure of -the California Blackeye peas to come up was the lack of germinating qualities in them. We cannot agree with counsel in this contention. It is true that the California Blackeye peas were plant* ed about the 21st of April in the same soil, but it was not shown by appellee that the soy beans had the same germinating qualities as the California Blackeye peas, or that they should be planted about the same time. The Whippoorwill peas were not planted until the 10th of May following the planting of the California Blackeye peas on the 21st of April. The season was then further advanced, and the fact that they grew at that time in the same soil would not tend to show that the California blackeye peas, planted on the 21st of April preceding, lacked germinating qualities. It was the theory of appellants that the seed did not come up because they were planted in cold wet soil. The season was further advanced on the 10th of May than when the 'California blackeye peas were planted, and the testimony that the Whippoorwill peas came up when planted on the 10th of May would not tend to show that the California Blackeye peas planted on the 21st of April preceding lacked germinating qualities. It was not shown that the germinating qualities of the soy beans and the Calif ornia Blaekeye peas were the same,' and the fact that soy beans planted at about the same time as the California Blaekeye peas that came up in the same soil, would tend to show that the peas had no germinating power. The evidence, being admitted to establish a fact which it had no tendency to prove, was necessarily prejudicial to the rights of appellants, and therefore constituted prejudicial error calling for a reversal of the judgment. It is next contended that the court erred in telling the jury that there was an implied warranty of germinating power in the peas. The undisputed evidence shows that at the time appellee purchased the seeds from appellants he stated that he wanted them to plant, and it could not be told from looking at the seeds whether they were good for the purpose of seeding or not. The authorities are divided on the question of whether there is an implied warranty of germinating power on a sale of seeds for planting purposes. It is said that the weight of authority is that there is an implied warranty that seeds sold for planting are fairly and reasonably suitable for that purpose and is breached if the seeds are unfit for planting because they have no germinating power. Totten v. Stevenson, (S. D.) 135 N. W. 715; Shaw v. Smith, (Kan.) 11 L. R. A. 681; and case notes to 37 L. R. A. (N. S.) 81; L. R. A. 1916-C p. 1012, and Ann Cas. 1918-B, 74. The holding that a warranty of germinating power is implied in the sale of seeds for planting is in accord with the previous holding of this court on a kindred question. In Kefauver v. Price, 136 Ark. 342, the court held that there is an implied warranty in the sale of seeds for planting or sowing where the sale is by description, that the seeds are true to name. In that case the court said that the fact that the buyer inspected the seeds before purchasing is immaterial when the character of the seeds cannot be ascertained by any reasonable inspection. In the present case, appellants denied the warranty. Under this denial it was competent for them to show facts negativing an implied warranty, and this they did by proving that they had advertised in a paper published in the town where they did business that they did not expressly or impliedly warrant their seeds for planting purposes. Appellee denied that he had read this notice. This phase of the case was submitted to the jury under proper instructions, and the court did not err in submitting the issue of implied warranty to the jury. It is next insisted that the court erred in submitting to the jury the question of express warranty in the sale of the seeds by appellants. Of course, there could not'be both an express warranty and an implied warranty of fitness for the purpose for which the seeds were sold. The reason is that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an im-. plied, warranty if there was an express warranty on the same subject. This rule, however, would not necessarily render erroneous instructions on both express and implied warranty of germinating power. The reason is that the jury might find one or the other not to exist under the facts and circumstances introduced in evidence. For instance, in the present case the jury might have found that there was no implied warranty because appellee had read the notice published in the paper by appellants to the effect that they gave no warranty, express or implied, as to the quality or productiveness of their seeds. At the same time, if the evidence was sufficient to establish an express warranty, this would govern as the contract between the parties, notwithstanding appellee might have read the notice in the paper. Hence, in view of another trial, we deem it necessary to decide whether or not the evidence introduced is sufficient to establish an express warranty that the seeds possessed germinating power. The only testimony on that point is the testimony of the appellee himself. We h'avé copied what he said on this point in our statement of facts and do not deem it necessary to repeat it here. We do not think the testimony is sufficient to establish an express warranty. It is true that the dealer told the buyer that California Blaekeye peas were good producers and had plenty of food value in them, but this was not sufficient to constitute an express warranty that the seeds sold possessed germinating power. For the error in admitting testimony as above indicated the judgment must be reversed, and the cause will be remanded for a new trial.