Opinion
35446.
DECIDED FEBRUARY 23, 1955. REHEARING DENIED MARCH 25, 1955.
Action on contract. Before Judge Henson. Fulton Civil Court. September 27, 1955.
Dunaway Embry, James M. Embry, for plaintiff in error.
Wm. F. Buchanan, Newell Edenfield, contra.
The statement contained in the defendant's sales literature which induced the plaintiff to purchase the defendant's product, if they amounted to a warranty, amounted to a limited warranty and expressly did not cover the circumstances and methods under which the plaintiff's alleged loss occurred. The evidence did not authorize a finding that the defendant had breached an express warranty; therefore, the court erred in denying the motion for a new trial.
DECIDED FEBRUARY 23, 1955 — REHEARING DENIED MARCH 25, 1955.
Sawan, Incorporated, sued American Cyanamid Company for damages for an alleged breach of express warranty. The defendant manufactured and sold a fumigant under the name of "Acrylon." The plaintiff contends the defendant warranted that "Acrylon" would not affect the germinative qualities of seed. The plaintiff purchased a quantity of "Acrylon" from the defendant to fumigate 2,051 bushels of hybrid seed corn. The plaintiff contends that it used the product "Acrylon" to fumigate the seed corn according to instructions, and that the use of the product destroyed the germinative qualities of the corn and thereby damaged the plaintiff.
The only evidence necessary to the holding we herein make is that pertaining to the question whether the defendant warranted its product under the methods used by the plaintiff, and whether such warranty was relied upon by the plaintiff and caused it to purchase the fumigant.
D. S. Doby, seed analyst and warehouseman for the plaintiff, testified in substance and in part as follows: that, in order to kill weevils, seed had to be fumigated; that the plaintiff had, from time to time, used various fumigants, but that most of them had certain adverse qualities such as being combustible, irritating to eyes and skin, noxious to use, etc.; that in 1949 he talked with a Mr. Brannon who was a representative of the defendant; that Brannon told him about "Acrylon," and left some descriptive literature with him; that one piece of literature was a blotter which stated: "Acrylon fumigant. Controls insects in seeds. Used in cabinet drawers, drums and atmospheric chambers. Does not affect germination. No fire hazard. American Cyanamid Company, Agricultural Chemicals Division, 30 Rockefeller Plaza, New York 20, N. Y."; that he, Doby, was concerned about any new fumigant because he knew some fumigants were dangerous to germination; that he talked to Mr. Brannon extensively about this, and Brannon said that there was absolutely no danger of damaging germination or seed by the use of "Acrylon"; that "Mr. Brannon had worked with us himself some in trying some of this material. We tried it under some tarpaulins. In other words, piling seed on the floor in bags, put tarpaulins over them, and then applying the fumigant. And we didn't get the concentration there that would kill weevils. In other words, it didn't work, there. After this failed to work Mr. Brannon suggested we needed to build an air-tight fumigation chamber"; that a fumigation chamber was built; that Mr. Brannon saw it and stated he thought it was a very good chamber; that the inside of the chamber measured 1,449 cubic feet; that the seed was first fumigated the latter part of June, 1949; that it was fumigated a second time in October, 1949; that the first fumigation did not affect the germination, but that the injury to the germinative quality of the corn showed up during the second fumigation.
Welborn E. Tidwell testified as follows: "Q. Mr. Tidwell, what is your business? A. At the present time general manager, Merrill Grain, Inc., Kansas City, Missouri, and also salesman for Sawan, Inc. Q. What was your position in the spring of 1948 and 1949? A. President and general manager, Sawan, Inc. Q. And the home office of Sawan is in Columbus, Mississippi? A. Yes, sir. Q. And they have branches over the Southeast? A. Yes, sir. Q. I will ask you whether or not you know a man by the name of Brannon who is an employee of American Cyanamid Company? A. Yes, sir. Q. Did you or did you not in the fall of 1948 or spring of 1949 have some conversation with Mr. Brannon about a product called Acrylon or Carbacryl? A. Mr. Brannon was their representative. He usually came through my office on the way back to the warehouse to talk to Mr. Doby. I may or may not have had conversation with him. I do not recall specifically. Q. Who is the first person from whom you ever heard of Acrylon or Carbacryl? A. My first recollection would be that Doby, who was in charge of our warehouse, purchased Acrylon for our use, and then I approved the purchase, which I do of everything that is bought by our organization. Q. Did you ever have any conversation with Mr. Brannon about Acrylon? A. I possibly did, because he would visit coming and going with me. Q. I show you this document marked plaintiff's Exhibit 2 and ask you whether or not you have seen that document before. A. Yes, sir, I have. Q. I ask you where you saw it and under what circumstances. A. I saw this document when I approved the purchase of Acrylon for our use. Q. Did you read the document? A. Yes, sir. Q. Did you or not rely on the representations contained in that document in buying Acrylon? A. Absolutely. Q. Mr. Tidwell, how long have you been in the seed business? A. Since December, 1949. Q. Prior to 1949 state whether or not there have been some difficulties in finding a suitable fumigant for corn and seed corn. A. Yes, we had our problems in trying to find something to use as a fumigant. Q. Did that need have anything to do with your purchase of Acrylon and your reliance upon the representations contained in plaintiff's Exhibit 2? A. Yes, sir, we positively needed a fumigant which was described in this pamphlet. Q. Did the representations contained in that pamphlet, did that or not induce you to buy Acrylon? A. Yes, sir."
The pertinent parts of plaintiff's Exhibit 2 are as follows: "Advance bulletin. Acrylon spot fumigant for seed fumigation. Sufficient evidence has now been accumulated to establish the value of Acrylon as a seed fumigant. Laboratory tests have shown that Acrylon does not affect germination at recommended dosages; experimental and field work have demonstrated its effestiveness, safety, and ease of use. While some work in certain phases of application must still be undertaken, the following recommendations can be made for the control of infestations in seed with Acrylon.
"Acrylon for seed fumigation. Acrylon, made up of equal parts by volume of acrylonitrile and carbon tetrachloride, was originally developed as a local or `spot' fumigant, for treating enclosed small-space machinery in flour mills, bakeries, macaroni and cereal plants. It has also been widely adopted for the vacuum fumigation of a wide variety of food and feed products, replacing many of the more commonly used fumigants.
"Acrylon, while technically classed as a fumigant, is considerably less toxic to warm-blooded animals than most fumigants. It is highly toxic to practically all species of insects, when used in concentrations comparable to other fumigants.
"In addition to the above-mentioned well-established uses for Acrylon, considerable data has been secured, over the past two years, dealing with the application of Acrylon for seed fumigation. Particular emphasis was given to the fumigation of bulk and packaged seed stored in drawers, bins, and drums in stores or warehouses merchandising flower and garden seeds.
"Of course it was of utmost importance to first determine whether Acrylon, when applied in concentrations sufficient to insure a complete kill of insects, would in any way injure the germinative capacity of seed.
"A considerable number of tests in which varying concentrations of Acrylon were applied, with exposure periods varying from 18 to 48 hours, were run and subsequently germination tests were made by an independent seed-testing laboratory which reported the following results: . . .
"It will be noted that even when fumigated with Acrylon for 48 hours, using a dosage of 5 lbs. (approximately 70 fluid ounces) per 1,000 cu. ft. of space, no injury or diminution in viability was observed.
"Additional tests were made with corn fumigated with Acrylon for a period of 18 hours using dosages of 10 lbs. and 20 lbs. per 1,000 cu. ft., and the results were as follows: . . .
"It is obvious from the data presented in Tables I and II, that even when used in extremely high concentrations Acrylon has no deleterious effect on seed germination. While it may conceivably be that a few species of seed may be adversely affected, the wide variety of species tested certainly gives no grounds for believing this to be a fact.
"Closed containers. It has been determined that a complete kill of all insects is obtained in closed containers when a dosage, applied at the rate of 3 lbs. of Acrylon per 1,000 cu. ft. of space, is used with an exposure period of 24 hours. If higher dosages are used, a 12-hour exposure (or over night) is sufficient. . .
"Atmospheric chamber fumigation. The above-mentioned methods of fumigating small quantities of seed, either in packages or in bulk, have given eminently satisfactory results, but as yet the use of Acrylon in large atmospheric fumigation chambers, ranging from 1,000 cu. ft. capacity up, has been limited. Before making any general recommendations as to dosage, exposure, and methods of application to be used under heavy load conditions, additional data must be secured.
"However, in the trials which have been made to date in large chambers with bagged seed, using a dosage of 3 lbs. per 1,000 cu. ft. of chamber space, and an exposure period of 48 hours, complete kills of all stages of insect life have been secured, particularly in the case of hybrid seed corn. The temperature of the seed should be 55 degrees F. or more, although indications are that good kills are obtained at much lower temperatures. . .
"Details and specifications for the construction and operation of atmospheric chambers will be supplied on request, and recommendations for treating any particular seed will also be furnished on request. . .
"Acrylon has many more advantages than any other single fumigant, and of these might be mentioned: 1. Toxic to all states of insect life. 2. Relatively safe to use. 3. No fire hazard. 4. Leaves no deleterious residues. 5. Will not affect germination. 6. Easily applied. 7. Airs out of seed very rapidly leaving no odor. 8. Economical."
The trial judge, sitting as trior of facts without the intervention of a jury, found for the plaintiff. The defendant's motion for a new trial on the general grounds was denied and it excepts.
The evidence shows that the defendant's product was purchased by the plaintiff's then president and general manager, Mr. Tidwell. He testified that he approved the purchase as he did all purchases. His testimony further shows that he relied solely on the statements made in plaintiff's Exhibit 2. He did not rely on anything Brannon said to him, or on anything Brannon said to Doby or on anything Doby may have said to him. Any sales or promotional literature such as blotters, etc., which Brannon may have given to Doby in no way caused Tidwell to make to purchase. Since Tidwell and not Doby made the purchase, we must look to what induced Tidwell to make the purchase. Doby testified that the blotters and other sales literature other than the Advance Bulletin were received after the purchase of the Acrylon and that the statements made by Brannon that the Acrylon was "absolutely safe" and was "foolproof" were made after the unsuccessful attempt to use the Acrylon under tarpaulin and at the time when Doby and Brannon were discussing the building of an atmospheric chamber. Since Tidwell's testimony and the other testimony showed that Tidwell relied solely on the Advance Bulletin, plaintiff's Exhibit 2, it is to that bulletin that we must look to see if the defendant made an express warranty and whether there was a breach of such warranty should it be found that one was made.
If the statements contained in the Advance Bulletin amount to a warranty, the warranty was a limited one. The bulletin stated: "Laboratory tests have shown that Acrylon does not affect germination at recommended dosages; experimental and field work have demonstrated its effectiveness, safety, and case of use. While some work in certain phases of application must still be undertaken, the following recommendations can be made for the control of infestations in seed with Acrylon. . . but as yet the use of Acrylon in large atmospheric fumigation chambers, ranging from 1,000 cu. ft. capacity up, has been limited. Before making any general recommendations as to dosage, exposure, and methods of application to be used under heavy load conditions, additional data must be secured. . . Details and specifications for the construction and operation of atmospheric chambers will be supplied on request, and recommendations for treating any particular seed will also be furnished on request." (Italics supplied.)
The plaintiff built and used an atmospheric chamber measuring 1,449 cubic feet. Clearly, anything in the Advance Bulletin which might be considered a warranty that Acrylon would not affect germination in seed was expressly limited to fumigation in chambers of 1,000 cubic feet or less. The defendant stated in its Advance Bulletin that it was not making any "general recommendations" about the use of Acrylon in atmospheric chambers ranging from 1,000 cubic feet capacity up because the use of Acrylon in such chambers had been limited. The defendant, for this reason, or for other good reasons, or for no reason at all, had the right to limit its warranty.
The plaintiff relies strongly on the dealings between Doby and Brannon. As shown above, these dealings in no way affected the purchase of the product by Tidwell. Doby and Brannon first tried and used the Acrylon under tarpaulins, but that was unsuccessful. It was after this attempt that Doby testified Brannon suggested an atmospheric chamber. Doby also testified that not only did Brannon suggest the chamber, but that he saw it after it was completed, could or should have known it exceeded 1,000 cubic feet, and said he thought it was a good chamber. This was not in response to any requests made to the defendant in accordance with the provisions of the Advance Bulletin, because Doby testified that no further data or information was requested of the plaintiff. The use of Acrylon under the tarpaulins and the construction of the chamber happened after Tidwell had purchased the Acrylon. Generally, representations or statements which are made after a sale and which did not induce it, do not amount to a warranty, unless there is some new consideration to support it. Baldwin v. Daniel, 69 Ga. 782 (4); Brooks v. Matthews, 78 Ga. 739 (2) ( 3 S.E. 627). There is no evidence of any consideration to support a new warranty, nor is there any evidence to authorize a finding that Brannon was authorized to make a warranty contrary to the alleged express warranty relied on.
The fact that, after the defendant was notified of the loss, a chemist hired by the defendant inspected the chamber and did not criticize or comment on it does not alter the situation. The chemist was under no duty to speak, and the fact that he made no comment does not operate adversely to the defendant's interest.
What has been said above applies equally to a second fumigation as it does to a first.
It is contended by the defendant in error that the evidence does not show that Tidwell, who was president and general manager of Sawan at the time of the purchase of the Acrylon, had to approve all purchases made by Sawan. Tidwell testified: "I approved the purchase, which I do of everything that is bought by our organization." In view of Tidwell's universal practice of approving every purchase made by Sawan, and in the absence of evidence to the contrary, the purchase of the Acrylon could not have been made without Tidwell's approval; therefore, Tidwell and not Doby was the "purchaser" within the meaning of the word as applied to this case, and all that Doby did was to submit an "order" or recommendation for Tidwell's approval or disapproval. It was Tidwell's approval that gave the order-life.
The evidence did not authorize a finding that the defendant had breached an express warranty.
The court erred in denying the motion for a new trial.
Judgment reversed. Quillian and Nichols, JJ., concur.