Opinion
No. 9562.
April 13, 1966.
APPEAL FROM DISTRICT COURT, ELEVENTH JUDICIAL DISTRICT, CASSIA COUNTY, LLOYD J. WEBB, J.
Herman E. Bedke, Burley, for appellant.
H. William Furchner, Blackfoot, Hugh C. Maguire, Jr., and Louis F. Racine, Jr., Pocatello, for respondent.
Subject to the provisions of this law and any statute in that behalf, there is no implied warranty or condition as to quality or witness of any particular purpose of goods supplied under contract of sale or sale except as follows:
1. Where the Buyer, expressly or by implication, makes known to the Seller the particular purpose for which the goods are required, and it appears that the Buyer relies on the Seller's skill or judgment (whether he be the grower, manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. Idaho Code 64-115(1); Tomita v. Johnson, 49 Idaho 643, 290 P. 395; Investors' Mortgage Security Company v. Straus Co., 50 Idaho 562, 298 P. 678; Anderson v. Blackfoot Livestock Commission Co., 85 Idaho 64, 375 P.2d 704; Grisinger v. Hubbard, 21 Idaho 469, 122 P. 853.
The Purchasers may defend on a promissory note given for the cost of merchandise purchased when there is a breach of implied warranty for the goods sold. Tomita v. Johnson, 49 Idaho 463, 290 P. 395.
"Upon the sale of seeds for planting, there is an implied warranty that the seeds are reasonably fit for the purposes for which they are intended, that they are true to name, and that they will germinate and grow. Wapato Fruit Cold Storage Co. v. Denham, 126 Wn. 676, 219 P. 30, 32 (1923).
If, however, there is a general custom among sellers of seed not to warrant the seed sold by them, a court cannot, in the face of this universal custom, infer an intent on their part to warrant the seed from the facts and circumstances of the sale, because among those facts and circumstances is the custom of nonwarranty, which precludes the inference of intent to warrant. Miller v. Germain Seed Plant Co., 193 Cal. 62, 222 P. 817, 822, 32 A.L.R. 1215 (1924).
"If the grower plants defective seed with full knowledge of the actual kind, condition, and quality, the planting with such knowledge constitutes an independent act which is an intervening and the immediate and operating cause of the resulting damage. The grower, when he plants with such knowledge, cannot recover for crop failure. Tomita v. Johnson, 49 Idaho 643, 647, 290 P. 395.
In 1961 T.S. Vanderford, plaintiff-respondent, sold a quantity of potato seed to Chester Hylton, defendant-appellant herein. Hylton executed a promissory note for the purchase price of the seed. Hylton refused to pay the note when it became due and Vanderford instituted this action to collect thereon. As a defense and also by way of counterclaim, Hylton asserted a failure of consideration in that the seed was diseased and worthless, that Vanderford breached express and implied warranties as to the fitness of the seed and sought damages arising out of the alleged breach.
The trial court found in favor of Vanderford on the note and against Hylton on his counterclaim and entered judgment accordingly. Hylton appeals from that judgment.
The evidence is conflicting as to whether the seed was diseased and the cause of the eumartii wilt in appellant's potato crop.
The trial court found that:
"The Defendant has failed to prove by a preponderance of the evidence that any damages he suffered from eumartii wilt in his 1961 potato crop was caused by such disease in the potato seed which he purchased from the Plaintiff."
Appellant's other assignments of error are generally directed to findings of fact and conclusions of law based thereon. The evidence supports the findings of the trial court.
The judgment is affirmed.
Costs to respondent.
McFADDEN, C.J., and TAYLOR, SMITH, and SPEAR, JJ., concur.