74 N.Y.S. 224 | N.Y. App. Div. | 1902
The judgment and order appealed from should be reversed and a new; trial granted, with costs to the appellant to abide event.
The action was brought to recover damages caused by the introduction of the seed of wild mustard into the plaintiff’s farm by the sowing of oats purchased of defendant.
Plaintiff’s farm was near Lockport and contained 100 acres, 22 of which were sowed to the oats in question. The defendant lived near Syracuse, and carried on a large seed business. Early in the year 1900 he issued a catalogue in his business, and on the 1st page thereof was the following : “ My Guarantee. I guarantee that all seeds and other goods sent out from my establishment shall reach the pm chaser safe, in good condition, be fresh and true to name, to grow if properly planted, and if such should not prove the case, I will refill the order free of charge, providing sufficient proof is given me within a reasonable time. I cannot guarantee crops and will not be held responsible for them.” He also advertised in the catalogue a variety of oats, called the “ Record Breaker,” and said of them: “ After reading the experience of my customers in growing this oat, is there one that can doubt that this is not going to be a leading variety ? Order early, for you certainly cannot make a mistake. Price of choice stock, well cleaned, as follows,” etc., etc.
The plaintiff received this catalogue sent him by the defendant, read the guaranty and the advertisement of the “ Record Breaker ” variety of oats, and April 12, 1900, ordered by mail sixty bushels of the oats, paying therefor thirty-six dollars. The oats were received by the plaintiff about May 4,1900, put up in twenty bags, each bag containing three bushels. In each bag upon the oats was a card reading as follows:
“ Oats, Record Breaker. 1 exercise the greatest care to have all my seeds, potatoes, bulbs, plants, etc., fresh, pure, clean and true to name, and if such should not be the case, I will refill the order, free of charge, providing sufficient proof is given me within a reasonable length of time. I cannot guarantee crops and will not be held responsible for them. If these goods are not accepted on these terms, they must be returned at once.
“F. B. MILLS,
“ Fair view Seed Farm.”
A correspondence took place between the parties, of which the following is a brief synopsis: May 11, 1900, plaintiff wrote the defendant inclosing a package of the foreign seeds, and one of the
• July 5, 1900, plaintiff’s attorneys wrote defendant again, saying-one Cummings, some time before, was there and solicited a proposition for the settlement of plaintiff’s claim, and asking whether plaintiff’s proposition was communicated to defendant, and request
The court charged the jury that there was no express warranty of the oats, but that there was an implied warranty that they were free from any noxious seeds not discoverable by a reasonable inspection and examination, and submitted to the jury the question whether the mustard seeds were so discoverable.
First. That the- contraction the sale of the oats, as proposed by the defendant, was contained in the §ard accompanying the oats ; that this contract was completed on the part of the plaintiff by accepting and sowing the oats, after an opportunity to examine' and inspect them, and that, in view of the terms ■ of such contract, no warranty could be implied. ■
Second. That if any warranty could be implied it was not such a one as suggested by the court and as would survive the acceptance of the oats, inasmuch as a reasonable, examination and inspection thereof would have discovered the presence of the mustard seed.
These questions were clearly raised by exceptions to the charge as made and to refusals to charge as requested. . .
We are unable to see how there could be any implied Warranty at all under the contract of the parties. There can be no doubt as to what the contract was. Ho fraud or deception was claimed. The catalogue and the card accompanying the oats together constituted an offer by the defendant to sell and deliver the oats on certain terms. The guaranty in the catalogue was that the oafs should be delivered in good condition. The card stated that the defendant exercised the greatest care to have his seeds, among other things, pure and clean. In both the catalogué and card the defendant stated that if the seeds were not as represented he would refill the order, providing sufficient proof was given within a reasonable time; that he could not guarantee • the crop and would not be responsible for it, and then in the card he expressly provided that if. the oats were not accepted on these terms' th'ey 'musf be returned at once.
■ The oats having been shipped to and received by the plaintiff under this offer, he was called upon before he accepted and sowed the oats to examine and inspect them, not only ás to the general appearance of the oats themselves, but as to their being' pure, clean- and free from noxious seeds, and if they were found to be not'as represented, but to contain foreign seeds, he must refuse to accept them or to complete the contract, and could then take advantage of the provision in the offer to have his order refilled. He could not accept and.sow the oafs without examination and inspection, thus completing the contract, and then rely Upon 'any implied contract as
Another objection to a recovery is that after the plaintiff discovered the presence in the oats of the foreign seeds, he continued to use them, sowing three acres of his own land and turning sixteen bushels over to his son, who sowed them upon his land. This case did not, therefore, rest upon the proposition that the plaintiff retained the oáts and did not return them to the defendant while in ignorance of the presence of foreign seeds. He retained and sowed, or allowed his son to sow, twenty bushels thereof after he concededly discovered the presence of .the foreign seeds. This would seem to
Again, the. damages awarded by the jury under the circumstances were excessive. The measure of damages charged by the court was correct as a general proposition, the amount paid, for-the oats sowed upon ,the twenty-two acres, and the difference in the value of the whole farm of one hundred acres, by reason of the introduction of' the mustard seed into the twenty-two acres. The difficulty was in the application of the rule to the evidence in the case. The plaintiff sowed the oats upon three of the twentyr two acres with a knowledge that there were foreign seeds therein. He did not know the seeds were noxious, but he sowed them in disregard of the danger to be apprehended in sowing upon his land seeds the nature of which lie did not know. It was plaintiff’s" duty, when he discovered the.injury done to his land by the introduction of mustard, to do whatever he could to make the damages as little as possible. He was asked by the defendant to employ help and pull the mustard plants before they went to seed, and the defendant finally offered to pay the expense thus incurred, regardless of his legal liability to do so. The plaintiff refused to treat the laud in this way, but proceedéd to plow the whole crop under and to harrow the field thereafter, making at .the same time a claim for $1,000 damages to his farm. The crop of oats was thereby destroyed, and the plaintiff had no more-use of the twenty-two acres that year. Very likely it was for the jury to determine whether the plaintiff acted in good faith in plowing and harrowing the land rather than pulling the mustard plants, and which was the better method to get rid of the mustard, but. what evidence was there upon the trial that the treatment given the land had not substantially eradicated the mustard seed from the twenty-two acres? Merely the evidence of so-called" experts that it was likely that all the mustard seeds had not sprouted, and would yet produce mustard plants, and that it could not certainly be known that the mustard was entirely eradicated for five and perhaps ten years. The season of 1900 had 'passed. .' It was April, 1901, when the trial took place. Substantially no additional plants had appeared after the final harrowing the first part of September, 1900, and yet it was said other plants might ■ appear' thereafter, would very likely appear, and upon the
Our conclusion is that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant ■ to abide event.
Adams, P. J., McLennan and Hiscock, JJ., concurred; Spring, J., concurred in result on the ground that the damages are excessive under the proofs.
Judgment and order reversed on the law and the facts, and new trial ordered, with costs to the appellant to abide event.