Clements Farms, Inc. v. Ben Fish & Son

P.2d 917 FARMS, INC., CLEMENTS

Plaintiff-Respondent, SON, Paul L. &

BEN FISH Defendants-Appellants,

Dompe, Idaho, Inc.; & Reed Grain

Shields through Co.; I and John Does

Bean

V, Defendants.

No. 19047. Idaho,

Supreme Term. March 1991

Caldwell

June

186 1985, 6,

On March Clements entered into Shields, a contract with entitled “Contract Beans,” Growing of for Commercial to plant which Clements 9600 lima seed pounds baby G-78 bean “as Downen, Caldwell, & Gigray, Miller seeds,” plant bailee said to those E. defendants-appellants. Donald Downen particular on 80 acres described in seeds a argued. contract, crop, and to care for the har- Eberle, Berlin, Kading, Turnbow & same, vest and to deliver back to McKlveen, Boise, plaintiff-respondent. product Shields the harvested which would Bradbury argued. A. Stephen concerning quality, meet certain conditions paid per etc. Clements to be $21.00 BAKES, Chief Justice. hundredweight for those beans which met Farms, respondent Plaintiff Clements pro- The contract the contract standards. (Clements) planted crop lima Inc. a ownership of vided that “title and said beans, acquired with seeds which had been grown under this contract shall beans (Shields), Company from a Shields Seed Shields____” all times remain with The Idaho, Nampa, had seed warehouse who typical contract was a bailment/seed con- purchased appellant them from defendant tract similar to contracts which this Court (Ben Fish). crop Ben Fish & The Son past. has had consider in the occasion to growing failed to mature before season Alexie, Wilson Co. v. See Washburn Seed ended, brought and thereafter Clements 727, (1934); Idaho 35 54 P.2d 990 Smith v. against this and Ben Fish action Shields Co., 191, Idaho Wilson Washburn Seed implied alleging warranty breach of of fit- (1925); 232 P. 574 v. Fruit Thiel & Pacific particular a trial purpose. ness for Co., 51 Produce Idaho Ben had court found that Fish breached (1931); Warehouses, v. Peterson Conida implied warranty of fitness and rendered Inc., (1978); against judgment in of Clements Ben favor Inc., Chapman Haney Seed appealed ruling Ben to the Fish. P.2d 408 Appeals, deci- Court of which affirmed the granted sion court. We Ben district provided re- The contract further petition opinion Fish’s for review of the any crop Clem- sponsibility for failure was Appeals. ents’, and such Clem- in the event of failure by a The issues in this case are framed pay per hundred- ents would Shields $37.00 Fish, involving Ben series of transactions weight for the seed stock furnished. Clements, producer; California seed a Can- contract further contained disclaimer farmer; Shields, yon County a seed warranties, any or im- express Shields of Fish, producer, warehouse. The seed Ben concerning pur- plied, the seeds furnished enterprise devel- a California which has suant the bailment contract. oped proprietary strains lima numerous Pursuant to that bailment agricultural bean seed to meet various on delivered the seed Clements Shields products in In order to test its needs. However, May the seed before climates, Ben differing Fish distributed planted, had been Clements learned through parts in various seed warehouses difficulty. Discus- financial Shields country. Prior and Shields sions ensued between Clements strains, of its bean seed known sold one financially would be over whether Shields 8-78, growing test GBL Shields for crop in the purchase the harvested able crops ma- prior had Idaho. Those these discussions did satis- fall. When Shields contracted with Clements tured. concerns, communicated di- fy Clements’ lima from the GBL bean Fish, producer rectly with Ben not mature. The 8-78 seed. This did California, possibility exploring the chronology following describes the events Clem- purchase agreement between direct leading up to this lawsuit. ents and Ben Fish that avoid This would new Clements/Ben Fish 29,1985. signed May seed had risk of a future default the Shields already Ben been delivered Clements president warehouse. Fish’s flew to 8, 1985, pursuant Shields on Idaho and met with Clements. As a result contract; original how- Shields/Clements negotiations, of those Shields and Clements ever, yet planted had not been 1985, 6, voided March their contract on when the Shields contract was voided and 1985, 29, May and Ben Fish Clements signed the new with Ben Fish contract was signed a new day, contract on same 29, May on As the later 1985. evidence Contract,” consisting “Bean entitled of an show, would the GBL 8-78 seed had an agreement typewritten on Ben Fish’s let- rate, rendering unusually slow maturation provided terhead. This new contract it more than strains susceptible most seed plant, Clements would and har- cultivate crop to growing loss in the event of a short of vest 80 acres GBL lima bean 8-78 seed season. court The district found this by “with seed you stock furnished unusual characteristic was not disclosed to Idaho____” Co., Nampa, Shields Warehouse by byor Clements Shields Ben Fish. Rath- Unlike the Shields this was not a er, the trial court found that was Clements bailment contract which title to the bean simply negotia- Ben advised Fish at the Fish, crop remained in Ben but was rather May “get tions on to 29th bean [the seed] whereby agreed a contract Clements to ground soon possible.” as After plant, cultivate and GBL harvest 8-78 cultivation, preparing a field for Clements seed, stock pur- to planted the GBL 8-78 seed in mid-June. chase of beans which conformed ultimately was lost of because 1 grade the U.S. No. standards and other frost before it had matured. Delivery conditions. was be at the ware- brought against Clements this action house of Shields of Idaho. In the event producer, Fish, Shields and Ben longer was no operating, Shields seeking spent reimbursement for money agreement required Clements deliver the attempting crop. the ill-fated Triangle Homedale, beans at Bean at Ida- warehouse, Shields, against case ho. respect prior dismissed trial. With agreement which signed Clements Fish, Ben Clements asserted a breach of an provided further that: implied warranty of fitness under Uni- agreement accepted This by you when form alleged Commercial Code. Clements shall constitute contract be- [Ben Fish] represented that Ben Fish had the seed to agreements tween us. There are no capable maturing of into a harvestable understandings regarding subject crop. trial, Following a bench district agreement matter of other than ex- court judgment rendered favor Clem- pressed above. against ents compensatory Ben Fish for The contract was damages attorney written on Ben Fish Fish ap- & fees. Ben pealed, Son Immediately Appeals letterhead. Court of between the affirmed granted letterhead and the trial court’s decision. re- beginning of the “Bean We Appeals view of the Contract,” decision. by any and not surrounded oth- typing, following er was the disclaimer Regarding our standard of re print was written in smaller than view, peti where a comes case to us on contained the balance of the con- Appeals, tion for review from the Court of tract: opinion we review the court the district & Ben Fish Son the extent warrants to of directly. accord the of our While we views price purchase sold that seeds are as consideration, Court Appeals serious we recognized on recog- within container are not those bound views. State ex 429, nized gives Barnett, tolerances. Seller no further rel. Evans v. 116 Idaho express warranty, (1989). or implied.1 Additionally, P.2d 438 the determi- copy Appendix A the contract is attached as A. which was meaning legal bailment contract void on of a contract’s nation questions by May of law to be decided received the seed effect are 1985. Clements 8,1985, May always where the contract is clear and the court from Shields on Galaxy unambiguous. it, Outdoor Advertis- possession and would no doubt have Dept., 109 v. Idaho Trans. ing, Inc. planted pursuant law, On issues with Shields had not Clements become free this Court exercises review. Moses ability perform Shields’ cerned about Comm’n, 118 Idaho Idaho State Tax Thus, problems. of its financial because (1990); P.2d 964 Ins. Co. 29, 1985, when Shields’ Clements Safeco Yon, America v. 6, 1985, contract, and voided the March (1990). into Ben entered when Clements and Fish day, on that same their bean seed contract the court’s first address trial We agreeing har- plant to Clements was holding Fish the Clements/Ben con had in already lima seed which it vest bean gave was a contract bailment2 and tract agreeing Ben Fish was possession, its warranty implied by of fitness rise an crop buy under the terms the harvested which breached. Ben Fish was in 1985, set out the bean contract. May 29, and conditions argues that contract the Clements and a bail The bean contract between it and Clements was not between contract, and Appeals The nei Fish not a bailment ment contract. Ben was treating it as confirmed nor denied the trial court’s erred in ther the district court stating simply that “we finding, bailment such. controversy not con do think bailment record, Fish appellant Ben Based on ease,” and the trial trols this affirmed appeal. main Ben asserts two issues on that, the alternative rationale court on support is no Fish first contends that there directly apply while the U.C.C. did not was finding court’s that there the trial contract, by analogy the remedies of fitness implied warranty an created to Clements. were available U.C.C. Clements, since Ben in from Fish favor that, First, original it is clear unlike the purchaser Fish essence the Ben contract, Shields/Clements May under the not seller Fish contract was not Clements/Ben argues Secondly, Ben Fish contract. Both contract contract. bailment/seed the bean if it were a seller under even evidentiary us reveal and the record before contract, express dis- contract has an not the bean

that Clements was a bailee of warranty, im- express or claimer of vis-a-vis Ben Fish. issue, agree plied. On this latter we makes no ref- Fish contract Clements/Ben vacate appellant’s argument and therefore or to the title to erence either to bailment Appeals and of the Court of the decision in the record is the seed. evidence of the district court. reverse the decision seed, initially while uncontroverted that 28-2-316, U.C.C., parties to Under the § Shields, Fish, sold to produced by Ben may effectively disclaim a sales contract it to Clements who then delivered appropriate disclaim- any warranties 8, 1985, pursuant to the Shields/Clements The trial court acknowl- er in the contract. subsequently contract which was bailment disclaimer, but concluded that edged the Clements/Ben Fish con- voided. While the contained disclaimer furnished tract refer to “stock seed does suffi- Fish was not Clements/Ben Warehouse you at Shields [Ben Fish] did not ciently conspicuous and therefore Idaho,” facts Nampa, the uncontroverted requirements the U.C.C. meet that, initially furnished Ben are while warranty provides that Shields, The U.C.C. received the Clements “it is so conspicuous when pursuant to March disclaimer Shields seed from seed, usually stan- stated certain prior that a bailment seed Our cases indicate dards, to the back and then redelivers delivers when a seed warehouse contract occurs contract, who, seed, title retains farmer, under the retaining seedman the title seed to a resulting crop. original agrees seed and the both the which the farmer under a contract Company, 97 person against International Harvester written that reasonable (1976). ought noticed operate whom it is to to have 28-1-201(10). A in a it.” I. disclaimer C. § portion of the Additionally, the written conspicuous larger “if it is in contract is contract, immediately preceding signa- contrasting type other or color.” Id. tures, states: ‘conspicuous’ “Whether a term or clause is accepted by you agreement when This question is a for the court.” or not I.C. shall constitute a contract be- [Ben Fish] 28-1-201(10). Farmer v. International agreements or § tween us. There are no Company, subject Harvester understandings regarding respect agreement P.2d 1306 to the dis- this other than ex- With matter of case, pressed merely above. claimer the trial court print stated: “It is fine under the letter nothing agreement There is top page. head at the It is not that, suggests in the event that Clements conspicuous required by the statute.” raising not successful set out in beans which met the standards itself, however, print

Fine does Ben Fish would reimburse render a inconspicuous. disclaimer expenses attempting Clements for its says statute that disclaimers “contrast crop. raise the ing” type conspicuous; are the statute does that, Accordingly, upon hold based we say type contrasting must be both independent of the written con- our review larger. Nor does the fact that evidence in the tract and uncontroverted letterhead,” disclaimer is “under the but record, effectively contract” dis- “bean body above the detract implied warranty claimed of fitness conspicuousness; contrary, from its on the Accordingly, claimed the dis- Clements. amplifies visibility this case it judgment trict court’s in favor of Clements discovery. increases the likelihood of is reversed and the cause remanded with judgment disclaimer is located in the middle of the enter directions to favor appellant Ben Fish.3 page front of the contract and is set off short, direct, indentation. It is and is not appellant. attorney No fees Costs to by any language. surrounded other We allowed. person believe a would have reasonable accordingly JOHNSON, McDEYITT, noticed the disclaimer and we BOYLE JJ., conspicuous. hold that it concur. Farmer seller, implied 3. Since we have found the disclaimer in this and therefore no covenant un- conspicuous meaning U.C.C., case to be within the by analogy, der the could occur. statute, we need not address the issue raised that, 29, 1985, under the Clements, buyer, tract with it was a rather than pertinent relationship here legal pany. The BISTLINE, Justice, dissenting. only two culminated parties and involves I. PART agreement entered signing of written two entities, Clements by only those into scenario as factual Narrowing down Ben Farms, corporation, and Inc., an Idaho those opinion to in the Court’s portrayed may may not Son, & which determination, there exists necessary for The contents incorporated. been Seed Com- including Shields reason no Contract,” agreement, ing written titled “Bean in a which is written contract attached 29, 1985, opinion, to the Court’s and identified at May spelled out terms trial as Plaintiff’s Exhibit 3. The Chief agreed upon, and those determine the exact Justice declares this contract to not be a relationship. nature of the Today, authoring contract of bailment. opinion out, points As the prior Court’s opinion Court, Chief Justice party May to the two be- contract of could suggest overruling urge and Fish, tween prior Clements and there was a prior seedmen contract cases which were agreement Shields, between and Clements judicially construed as bailments. I would the majority concludes was a “bail- agree, together we should be able ment,” all nothing of which amounts scrounge up third Beyond vote.4 more than an historical footnote. Clements point, opinion conglomera- the Court’s is a “grower” was identified therein as the tion errors and unfounded and/or unnec- also as the “bailee” the seed which essary statements. obtaining Shields from Ben Fish. language of the new Clements, grower-bailee, as agreeing sisting paragraphs, of six could not have seeds, cultivate, plant, take those short, specific. been more It was noted, crop. harvest As apparently on point, explicitly clear. The first three Shield’s directions Ben Fish stock seed paragraphs six the contract shipped had been to Clements. The Clem- spelled exactly out what Clements would ents/Shields referred to Clements agreeing to: seeds,” “as the bailee of said which were (1) To raise for Ben Fish 80 acres of further described therein consisting Nampa, seed beans on land Clements’ pounds baby “9600 of G-78 lima bean Idaho. seed.” The majority correctly states (2) properly prepare plant To the contract which parties involved those 1985 such by you stock seed furnished mutually voided on 1985. Warehouse, at Shields Nam- [Ben Fish] entirely An new transaction between Ben Idaho; pa, properly for, care cultivate into, Fish and Clements was entered result- harvest so as to secure the Warehouses, Inc., In Peterson Leasing Thomason, v. Conida Corp. 98 dustrial 574, v. 96 Idaho 883, (1978), (1974). Idaho 575 P.2d 481 Justice Bakes 532 916 P.2d Peterson, 887, wrote: 98 at Idaho 575 at 487. This view, my by a theory explaining was followed full discussion accepted the bailment in 57, theory Campbell, how this Court initiated [v. Kent 80 the that one Idaho (1958) Court, pounds rejected planted of should hundred X’s beans in Y's ] be this and ground by merely sidestepped agreement Y creates an as of bailment we have done in agree case. whereunder bailor I the X becomes the Justice Bistline it owner of that crop grown stretching concept beyond ground. is all the bean bailee the of Y’s bailment breaking point specially concurring may opinion to The assert one that deliv- concluded: I plant er submit it is beans to another to that unrealistic to to them and harvest continue bean, indulge crop pro- the and in the fiction that a is still retain title to the which irretrievably planted ground, planting. duced the the in and Peterson, 886, very whose 98 Idaho at existence as a bean as it 575 P.2d at 484. Sim- ceases expressed plant, may subject turns bailment, specially ilar views were into a be the of a in the authored, entitling curring opinion supplier the of which I had the bean to also find- ing produced plant. opinion, claim all the fault in the Court’s beans from that but not the parties essentially a result reached: have entered into venture, joint company supply- agreeing I with the While have little trouble in that beans, sale, ing grower, my this is not a to and the here the mind it does not Grimms, necessarily supplying the land in the follow that it To which is a bailment. calling indulge may planted, together beans be in with all the the fiction of a bailment goes planting, cultivating, very labor which into that which is not a to bailment does little harvesting, hauling promote jurisprudence My warehouse. as a science. vote court, case, affirmance, therefore, Ferry The Idaho our Co. should not be con- case, quoting Ferry implying as strued from Montana conviction that arrangement right spoke between came close to the answer where Grimms Conida Obviously, proceeds was a bailment. ‘a share once those seed of net the adven- of planted, impossible beans were it was for the ture.' 36 at P. at Idaho 209 1067. which, Peterson, 887-88, goods,’ Grimms return the 'bailed at 575 P.2d at 487-88 view, my added). always right (emphasis is a In- of bailee. 192 Smith, beans, 36 quality Ferry elusion D.M. & Co.

greatest return ac- your (1922), all deliver beans P. that such Idaho 1066 [Ben Fish] Warehouse, Inc. at count at the Shields bailment, a which arrangement constituted Nampa, Idaho. accomplished by taking easy path (3) of said To deliver all harvested a similar Montana case. relying upon condition, beans sound merchantable give importance, Of court did consider- agree pay you ... [Ben Fish] the fact that the “bailee” was ation to cleaning, storage other warehouse “alto- compensation, entitled to and ruled charges. gether compensa- immaterial” whether paragraph The fourth stated Clem- money, tion was fixed at definite sum proceeds of the of the ven- ents’ share net proceeds net of the adven- or share computed at rate of $21 ture would be ture, prod- computed upon the or was to be per pounds hundred of marketable beans undertaking. upon uct of the The case according the conditions of delivered placed was another which it sole reliance di- paragraph fifth was a contract. The Ferry which came out of D.M. case become rection to Clements which would Court, Supreme excerpts and two Montana contingency be- on the of Shields effective Juris, Corpus at 1096 and 1139. out of 6 time, delivery ing operation at out Forquer, Ferry 61 Mont. D.M. & Co. v. “the beans are to be delivered which event P. Triangle at Homedale.” The sixth Bean concluding paragraph a short opin- here the Montana Applicable from that, agreement shall con- statement “This ion, adopted by the 1922 and utilized There are stitute a contract between us. Court, is the Supreme Idaho statement agreements understandings regard- no grower of the bean compensation subject agreement ing matter of the computed upon product “is seeds expressed There were other than above.” valid, or, undertaking,” equally [joint] agreement paragraphs. no other compensation would be grower’s duly executed. joint proceeds of the ven- share of the net years Exactly I wrote thirteen that which P. at ture.6 Peterson, again applicable: ago in Clements, there In the instant case had into essentially entered parties have product, re- been a marketable would venture, company joint with the seed compensation his the contractual- ceived as beans, grow- supplying the seed and the weight. Of ly per hundred stipulated $21 er, Grimms, the land supplying here the course, no and that was product, there was to- may planted, the beans Ben fix onto goes into the heart the lawsuit: gether with the labor which all harvesting, planting, cultivating, liability the loss suffered Clem- hauling time, to the warehouse. and expending money, its by ents for Ben Fish attempting in to raise effort Peterson, P.2d at 486.5 98 Idaho at frui- be nurtured to could not reached the which Supreme The 1922 Court harvesting bean planting and Dictionary, rendered seeds Centennial Edition 5. Black's Law bailments, (1891-1991), "joint recognizes crops legally and would venture” viewed as but are interchangeable de- “joint they are joint adventure” are recognized be for the ventures relationship legal with one the identical scribe actuality terminolo- is the correct and which in being grouping “a one-time of two definition gy. to surface. A third vote failed undertaking,” and persons more business being Today I Chief Justice and with the being "an of two or more the other association block, boys will there be on the two older enterprise carry single persons out a business to abrogating of fiction the bailment third vote for profit, purpose they their for combine which Today be. year 1922? There should skills, effects, knowledge.” property, money, ably three members convinced Chief Justice has 1991). (6th Dictionary ed. Black’s Law join decidendi Court in his ratio to 6. Thirteen years ago I was the new kid when by be- a disclaimer conspicuousness is fulfilled the second the newest, and Justice Bakes was block infinitely ing small —all that are in letters honestly felt certain that I believed and conspic- contrary example of is also, effort our time and Justice Bakes did provided Commercial in the Uniform uousness special writing would divorce concurrences Code. contracts services from the fiction that itself tion, accordingly should not have been Said voided hereinafter re- planted, all of which was known Ben ferred to as ‘Shields Contract.’ Fish but not to Clements. The district by

court’s decision was rendered means of VI. court-prepared findings augment- of fact as That on or Plain- about by supplemental ed Memorandum of the tiff entered into a written contract with same date: Defendant, Son, whereby Ben Fish & The above cause came before the supply said Defendant to the jury Court for trial without a on June 30 by Plaintiff lima described beans the De- July having 1987. The cause been fendant, Son, Ben Fish as GBL-8-78 to & submitted, the now makes its find- grown by the Plaintiff 1985 on ings of fact and conclusions law. approximately occupied acres of land Defendant, the Plaintiff. That said I. Son, agreed pay & That the Plaintiff was at all times pounds Plaintiff per of US # 1 $21.00 corporation hereinafter mentioned a ex- weight beans. marketable Said contract isting by virtue of the laws of the State is hereinafter referred as ‘Ben Fish principal Idaho and its place maintains Contract.’ in Nampa, business Idaho. Plaintiff is engaged in enterprises oper- farm VII. ates farms in the of Idaho. State Dompe That Defendant Paul L. acted agent as the Defendant Ben Fish & II. Son all matters related to the forma- Son, That Ben Fish & is a seed bean tion of the Ben Fish Contract. grower maintaining principal place its business State California. Ben VIII. Fish & Son’s name is used Dompe That the Shields virtue of and Ben Co., Corporation. Warehouse a California agreements above, referred to land, prepared planted Plaintiff had III. diligently and cultivated attempted Idaho, Inc., That Shields of is an Idaho grow said beans to maturity. lima corporation maintaining principal However, length due to the of time re- place of business in the State of Idaho. quired ger- for said beans from maturity, mination to bean did IV. grow maturity and was rendered worthless. Dompe, president That Paul L.

Dompe Warehouse is the authorized agent for defendant Ben Fish & Son and IX. authority acted with the full of defen- Defendants, That the Ben Fish & Son dant Ben Fish & Son all matters here- them, and Dompe, Paul L. and each of alleged. inafter impliedly to the Plaintiff warranted capable the being lima bean seed was of

V. grown by maturity to the Plaintiff under 6, 1985, Defendants, That on or about March Plain- circumstances the where tiff them, entered into a contract and written for each of knew or should have growing the of commercial beans known that the lima said bean seed had Defendant, Idaho, Inc., planted Shields to prior of which been agreement said was thereafter voided and that due such fact said bean to seed Defendant, the bilateral a grow crop conduct would not into mature in the Idaho, crop Shields of Inc. and the Plaintiff. time the available for to mature. It is the contract between

X. clear from to beans, the Plaintiff would have refused them, beans and closed the That enter into the Ben Fish Contract after average growing season for said lima voiding of failed to disclose the if growing season for said lima Defendants, Defendants had so dis- Shields Contract. to and the each of Plaintiff by Ben Fish. The bailment. Kent Fish was to know the such Plaintiff and Ben seed, 324 P.2d 399 Plaintiff conditions Ben Fish has the growing provide resulting crop to Clements v. season ^[398] Campbell, the contract & agreed lima (1958). for Son that Ben the area to bean seed creates a be owned 80 Idaho to duty Under being planting the seed is sent which XI. a which has a reason- supply That as a result of the Defendants’ produce crop. a able chance implied warranty, has breach of Plaintiff bar, provided which had case $38,- in damages the amount of incurred crop. bearing This is little chance expenses incurred Plaintiff 952.49 for implied war- tantamount a breach planting, irrigating, culti- preparing, ranty of fitness. Idaho Code 28-2-315 § vating, tending the said lima bean applied in this bailment case. should be planting. Supreme has noted that The Idaho implied proper circumstances the war- XII. ranty of extended to fitness should be required to That Plaintiff has been re- equipment Leasing v. leases. All-States attorneys to institute tain the services Bass, (1975). prosecute this action and has Equipment also Dick See Glen ] [Glenn attorneys fee. pay said a reasonable Galey Const. Co. Plaintiff is entitled to reasonable attor- The case at bar is provided in Sec. neys’ fees as Idaho Code appropriate it is to extend one which 12-121. warranty to Anno: 4 a bailment. See Wherefore, is Plaintiff entitled to seq. question Without A.L.R. 4th et Judgment against the Defendant position in the Ben Fish was best $38,952.49. amount of growing did know the time for know and hereto fur- memorandum attached Since Ben Fish should have its seed. findings fact explains ther these growing known available season of law which are to be re- conclusions area, Nampa the circum- under part garded as a thereof. bear of this case should stances provide Plaintiff’s counsel asked crop consequence risk fail- by the judgment for execution form of growing ure caused lack available Court. produce crop. The new con- season to Attorneys fees to be awarded Plain- Fish is signed by Plaintiff and Ben tract judgment upon tiff will be included takes the regarding party silent of attor- a memorandum submission crop cause. The risk of a failure and resolution of neys’ fees and costs properly will provides Clements any objection thereto. for, crop. cultivate and harvest the care day August, DATED this 6th did care for and cultivate Clements /s/W.E. Smith be- crop. He did not harvest Judge District destroyed by the weather. cause it was did not mature because MEMORANDUM first wrong supplied seed was held Ben Fish as the Court has place and supplemental to This memorandum for that have the risk loss should Findings of Fact and of the part of this under the circumstances failure herein on of Law entered Conclusions case. herewith. even date

195 Implied can all suitability being warranties be v. Alexie as fours but courts disclaimed but tend ‘to construe an invitation counsel declined implica- However, strictly language negating the Campbell. overrule Kent v. warranty.’ justices severely tion of such a Glen two Alexie at- [Glenn ] Dick, p. supra believing at 225 P.2d A Campbell tacked Kent v. it [541 1184]. appear parties’ disclaimer Chapman does on the In should overruled. v. 26, Co., contract. Plaintiff’s exhibit It is in Haney 3. Seed 102 Idaho 624 print top (1981), fine the Supreme under letter head at 408 P.2d Court page. of the It is not conspicuous again opportunity declined an to over- required by Hence, the statute. Idaho 28- Campbell. Code rule Kent v. 2-316(2); does nor the disclaimer ‘make having court no later cases has found plain’ implied warranty it has Campbell concluded Kent v. is still Peterson, been disclaimed. Lee v. 110 the law in Idaho. 601, Idaho (Ct.App.1986). 1373 added.) (Emphasis decision, In view of Court’s The entire thrust and ratio decidendi of quantum Court does not consider the me- opinion today’s by the is found in ruit issue raised counsel in his situa- language belongs more to a revival tion. meeting: person “We believe a reasonable Accordingly, find- reasons and disclaimer____” would have noticed the ings herein Plaintiff should have the 189, words, 814 P.2d at 921. In those ten

judgment in this case. judges four-appellate reject the meticulous- day August, DATED 6th this ly judge. written decision of the district /s/ W.E. Smith not, happens As more often than when the Judge District opinion, opin- Chief Justice authors an immediately garners

ion majority, FOOTNOTE thus the belief of the Chief Justice becomes justices. Today belief four four Bailments, 3(7), See also 8 C.J.S. Sec. reason, justices, acting each declare pp. 346; Am.Jur.2d, 345 and Bail- they purported would have noticed ments, 38, p. Sec. 773. Such a contract notwithstanding that it did not disclaimer— appear was also held constitute a bailment the body contract Smith, Ferry D.M. and Co. v. language body there nowas in the (1922). 209 Pac. 1066 incorporating it reference. position expressed same in Smith Moreover, necessarily the we-believers v. Washbum-Wilson Seed Ida- must also believe that disclaimer is (1925). However, ho 232 Pac. 574 just standing free disclaimer as to in a case where interest a land- warranties, specific and all to a but is as cropping lord in a share interest con- warranty fitness. flicted with the interest of a bailor who tenant, provided Unfortunately the justices four are re- (su- court Ferry failing overruled Smith miss understand pra). Co. v. fact-finding body. Washbum-Wilson Seed Court is not a This 35,P.2d Alexie, 54 Idaho 990 Court sits determine whether the lower theOn other hand in Kent v. trial courts have error. committed Fact Campbell, 80 Idaho finding province appellate is not the (1958) again presumes the court utilized the bail- This courts. Court nevertheless In theory. issue, ment Peterson v. Conida itself authorized to factual decide a Inc., Warehouses, namely whether not Clements should (1978), again P.2d 481 had to purported court have noticed the disclaimer. conflicting arising resolve interests be- so doing grievously. jury errs When a crop sharing tween a requested, contractor a has not district been court providing Judge Smith, bailor. The then the trier court becomes of fact. To fell, relied on obligation Co. in the instant case Washbum-Wilson Seed majority opin- of greater majesty the the from evidence whether decide in it dis- ion is the cavalier manner which establishing of carried its burden & Son pur- ruling that the Judge counts Smith’s it attention the had called Clement's inoperative be- ported notice was disclaimer disclaimer, or that the notice of purported print fine which exceptionally of the cause reasonably conspicuous and disclaimer conspicuous. not The Court rendered it contrary, To been noticed. the should have objective by read- accomplish seeks mounting conspic- to the level of not and 28-1-201(10) its ing into I.C. § belief uous, extremely print rather in and fine purported reads that a properly the section the letterhead but above appearing below “conspicuous” be considered disclaimer will purported word CONTRACT was letters, larger eye-catching if in it is disclaimer. it unreadable small is in also if found Moreover, judge, and the district he body print which is smaller than of involvement, jury where there was no alone contract. fact, capacity of in which he is the finder 28-1-201(10) simply does Idaho Code § ordinary common sense uses very utilizing not authorize disclaimers juror knowledge any as a fact finder which print, matter what small lower case no Yet, appel- here have four do. we would being of style type, of to fulfill function justices taking upon themselves to late not leave to conspicuous. The drafters did usurp function of the trial court Ida- ingenuity of clever minds. chance the finder, supplant his decision with fact 28-1-201(10) example an provides ho Code a reasonable their own notions what being conspicuous: “A of what amounts to reading plaintiffs on person would observe (as printed heading capitals NON-NE- Exhibit 3. LADING) conspic- is BILL OF GOTIABLE conspic- uous.” To be somehow otherwise majority opinion is majesty uous, (10) allow that the same section does it is where found at appearing body within the a language printed Ben Fish’s stated that disclaiming “conspicuous” if form is such writing in provided for form with blanks contrasting larger or other language is names, express contains an disclaimer way in no does subsec- type or color. But implied. The ma- any warranty, express or (10) state, suggest, or intimate that a tion and, “believing,” accord- jority continues appearing exceedingly small disclaimer charge- is ingly “agreeing,” that Clements being requirement of fulfills the letters put pur- on notice of the being able capital conspicuous to the same extent Conceding lack to a ported disclaimer. statutory law which both letters do. It the contents of five knowing all of capital letters requires and allows that seventy-seven pages of Uni- hundred being conspicuous. the function of serve Code, comprises which all form Commercial at hand there is no involvement In the case Code, I am not the Idaho of Volume 5A of ink, single one and but of different colored (10) of 28- subparagraph I.C. unaware of § it is on piece paper is involved and blank in the interest of Believing it to 1-201. letterhead, pur- side. The the reverse attention hoping to attract justice and disclaimer, heading CON- ported justices may not have the three who black, side and all one axe all TRACT transcripts peruse found time single paper. sheet of “contract” of a record, (10) has been subparagraph clerk’s are glance at a that there discloses itself print which equal the size of reduced therein, body meaning in the contained not Son disclaimer: comprises the Ben & way any text, any of the words another. The Court contrast with one (10) "ConapicuouB1’: conspicuous A or cl&usob it is term when do written person operate ought ogalnot reasonable whom it b noticed statute, not a tampering with a itself finds (as: printed heading it. A capitals NON-NEGOTIABLE BILL OF LADING) conspicuous. Language body “conspicuous” Is form ui tho Court, only doing not so rule contrasting telegram It U in larger typo if or other or color. But in ¡3“conspicuous” “conspicuous.” stated term is Whether a term or clause error, doing a disservice committing but la for decision the court. injustice to the district court and plaintiff. 28-1-201(10). I.C. § Judge correctly Smith pur- ruled that the “conspicuous” considered insofar as there ported conspicuous disclaimer “is not may as be a claimed defense of disclaimer. required by the statute.” requires heading. The Court’s The statute a The stat- opinion acknowledges reading ute is heading capital that conclu- definite that a sion, provided, letters be P.2d at and allows that the use dismisses capital Judge finding letters will fulfill the function of Smith’s and conclusion with being conspicuous. outstanding a most pairing of an ipse dixit and a sequitur: non This opinion very carefully Court’s itself, print however, Fine does not of, any avoids discussion or even mention

render a disclaimer inconspicuous. of, The (10) language the subsection providing says statute that disclaimers in ‘contrast- printed that a capitals HEADING in is the ing’ type conspicuous; are the statute first and foremost manner evidencing say does type not must be both some kind of an honest intent to call out to trasting reader, larger. “kindly Nor does the fact observe our disclaimer policy.” that the disclaimer is ‘under the Various editions of letter- dictionaries head,’ provide “heading” but the definition of body above the as: “An of the con- inscription, headline, tract, standing or title detract from at the conspicuousness; its top (as beginning chap- of a letter or a contrary, on the in this case amplifies it ter).” Webster’s Collegiate New visibility its Dictio- and increases the likelihood (1977); nary Heritage American Dictio- discovery. The disclaimer is located in nary English Language the middle of the page front of the con- (10) Subsection provides also that “lan- tract and is by set off indentation. It is guage body in the of a form is ‘conspic- short, direct, and is not by surrounded if larger uous’ it is contrasting or other language. other We believe a reason- color,” type or which carefully statement is person able would have noticed the dis- not mentioned in the majority opinion. The claimer and accordingly we hold that it obvious, reason is simply there is no use of conspicuous. contrasting type or colored body The first sentence of that paragraph should agreement. simply any There is not gain place in history as the most classic compliance statutory with the requirement nullity flowing appellate from an review. provisions. Judge Smith had no concern as to whether strongest point being promoted by print fine rendered a disclaimer inconspic- in attempting to justify its result uous. Uniform Commercial Code like- is that the disclaimer is located the mid- wise shows no concern for that which is dle page of the front of the contract and is inconspicuous. That word is not to be set off indentation. If there had been a found in 28-1-201(10). I.C. That Idaho § capital letter heading, disclaimer and un- statute deals with that conspic- which is less that heading disclaimer directly uous, and whether sufficiently so as to Contract,” below the two words “Bean it fulfill requirement regard to a still “is not within the four corners of the disclaimer, the successful may use of which years contract” ago older, I heard wiser seller, free lessor, joint or a venturer attorneys say. seeds, furnishing unfit from liability. Where majority has already por- The second sentence which follows is trayed diverting rationale attention equally nonpersuasive. Foremost, might to what inconspicuous, it has lacking in might pos- HEADING which gone also far negative afield another sibly, certainly probably, bring not meaningless brings statement as little anyone’s attention purports that it to be a being credit for uttered: This, too, disclaimer as to warranties. 28-1-201(10) the drafters of I.C. nothing There is agreement § left to chance and ingenuity. that, man’s suggests in the event that Clements speaks statute in terms of what will be was not in raising successful in May the set out on 1985. Clements received the which met standards beans 8, 1985, contract, May Ben seed from on was Fish would reimburse Shields it, always for in expenses attempting possession its would no Clements pursuant crop. planted have to raise doubt its contract with Shields had not Clem- 189, 814 at The Clement’s At ents become concerned about Shields’ trial, suit, pleaded pursued law as at ability perform of its because financial alleged pursued as neither nor such claim Thus, 29,May problems.] on when for relief. The claim liabili- the basis based Shields and Clements voided March ty for the reasons which the district court 1985, contract, and when Clements provided forth herein. as set Ben Fish entered into their bean seed day, contract on that same Clements was PART II. agreeing plant and harvest lima bean already posses- mounting validity of seed which it had an attack on the sion, opinion, agreeing buy and Ben Fish was the Court’s it is order to first crop under the against it the harvested terms and observe the attack which makes contract. Judge holding conditions set out the bean Smith’s contract Clements and Fish was one of The bean between Clements/Ben contract contract, Ben Fish not a bailment was bailment: treating and the district court erred it We first trial hold- address the court's as such. ing Fish contract Clements/Ben 187-188, (brackets At P.2d at 919-920 gave rise was contract of bailment and added). supplied; emphasis implied Ben warranty of fitness Fish Ben Fish ar- which was breached. ONE ANALYSIS OF THE JUSTICE’S 29, 1985, May gues that contract FOREGOING PARAGRAPHS it bail- between and Clements was ment contract. readily agreed It Clem- is contract makes no reference

ents/Fish or or mention of the words “bailment” of title First, that, origi- it is unlike the clear However, wholly to the seed. immaterial contract, nal Shields/Clement totally any irrelevant is mention or Fish was not a Clements/Ben contract voided, and thus rendered discussion the con- bailment/seed contract. Both naught, contract. All Shields/Clements evidentiary tract and the record before of that above set out which I have enclosed anot us reveal that Clements was bailee nothing super- in brackets amounts to but Ben Fish. bean seed vis-a-vis filler, equally fluous which is true no makes Clements/Ben contract para- third full content of second and or reference either to bailment 188-189, graphs at 918-919. in the title to the seed. evidence [The seed, gets Chief back on track with Justice record uncontroverted Fish, posses- that Clements had initially produced Ben was the statement while seed, having Shields, been deliv- delivered it to sion of stock sold to who then Clements on the direction of the May pursuant on ered to Clements Son, owner, time namely, Ben Fish & at a bailment contract the Shields/Clements contemplating a sale of subsequently when Ben Fish voided. While to Shields. That is correct re- the stock seed Fish contract does the Clements/Ben you when Shields Clements occurred fer 'stock seed furnished [Ben negotiations for together their Nampa, put had at Shields Warehouse Fish] as that, to raise the seed Shields’ Idaho,’ facts are Clements the uncontroverted bailee, but which did result initially furnished while Ben Fish mutually voided Shields, was later the which contract Clements received seed to Purely extraneous pursuant to its March and canceled. seed from Shields is the Chief Justice’s 6,1985, underlying issue contract which was void bailment pened warehouse when might to be in the Shields beliefs to what hypothetical voiding was canceled except for the mutual contract happened the Clement/Shields contract. The Chief and the Ben Shields/Clements Fish/Clements seed, part it, then resumes this statement: Justice If executed. exchange 29, 1985, Shields Thus, had been sold to when Shields and later, mutually 6, 1985, currency, on the the March con- voided Clements tract, cancellation the Clements/Shields and when Clements and might Shields have money into their bean seed contract tract which entered day, agreeing Clements to Ben have been returned. paid that same was to Fish would state plant appellant’s purports the harvest lima bean seed which what The brief already possession, in its and Ben controversy had is the over: buy agreeing was the harvested Fish the loss of a lima This is an action for crop under the terms and conditions set grown by been crop bean seed to have contract. The bean con- out the bean year plaintiff during crop the the Ben Fish tract between Clements and Initially plaintiff contracted with the contract, the not a bailment Idaho, grow the of Inc. to lima Shields treating court erred in it as such. district Idaho, crop Inc. with bean of Shields added). (emphasis Idaho, At Inc., 814 P.2d at 920 purchased by of seed Shields plaintiff from the When the defendant. BY FURTHER ANALYSIS Idaho, Inc., learned of was in that Shields ONE JUSTICE distress, perform financial he refused paragraph The choice of words the grow his seed for Shields contract to above, however, is directly definitely not Idaho, Later, of Inc. the Shields con- misleading. may correct and is Clements plaintiff and the tract was voided possession, had the stock seed his tracted the defendant to with but it was not Clements’ stock That seed. crop purchased the seed it had seed from property Ben Fish. stock seed was of Idaho, Inc. The from Shields of himself, misleads The Chief Justice plaintiff and the failed to mature justices in process, three other learned against brought this action defen- his statement that “Ben Fish was dant, theories, advancing several includ- buy agreeing crop____” harvested ing warranty. implied breach of validity There is no whatever in that state- Fish Excerpt Appellant, Ben & from the language or faint- anything ment. No such Son’s, brief, at 1. opening ly language is resembling that to be found appellant’s closing purports The brief Why agree contract. would Ben Fish it had stated in restate and enhance what product purchase own stock his opening brief: reason, fortiori, and a seed? No Ben Fish/Clements] [Ben Fish, contrary, by Ben did not. To the by par- plaintiff’s signed Exhibit agreement drafted which is on his own contract but was ties was not a bailment stationery, exacted letterhead from Clem- pur- sale and simply a for the contract obligated agreement ents an which the lat- lima chase the 1985 bean possession and Ben ter control of to obtain The seed plaintiff to the defendant. purpose stock seed for sole Fish’s [by planted which was Clements] sup- 80 acres. That sowing it Clements’ by defendant sold Fish] [Ben ply stock seed which Clements would be Idaho, seed was not Inc. The Shields was, even probably as the Chief furnished sold the defendant which, asserts, [Ben Fish] in storage then Justice plaintiff This contract un- happenstance, [Clements]. was the Shields’ warehouse. Campbell, supra. like that Shields, course, Kent However, longer was no title to did not have defendant involved, having into can- entered a mutual passed previously used. had Title voiding cellation that Shields Idaho, Inc., when at an to Shields Clements, ex- time had with which one by defendant to plains hap- earlier time it was sold why the stock seed Idaho, preceding foregoing, Shields of Inc. turn title to In a sentence [In passed plaintiff the Ben Fish mentioned to the when brief some conver- sations Clements and the defen- plaintiff purchased it from of Ida- between Shields ho, place May dants which took between Inc.] inferentially sup- Son’s, Excerpt Appellant, from Ben Fish & support posedly of the above statement brief, simplistic at 12. It is a factual sce- that “it was that Ben Fish & Son nario. plain- would enter into a contract with the excerpts from the two briefs sub- purchase tiff to these beans.” The citation disturbing mitted Ben Fish are and con- supporting I, conversations is Tr. Vol fusing. being urged The contention there- p. Looking passage L. 5-12. at that in seems to be that Clements became the produces following question and an- initially owner of the seed stock which had swer, place which takes with Clements on possession come into the Shields during the stand direct examination in raising crop that instead of of seed plaintiff’s case in chief: Fish, according bean for Ben all to the Q. your Does that refresh recollec- written Clements/Ben Fish contract. you may placed tion as to when raising Clements was his own seed stock Dompe call to Mr. in California? involved, only for himself. Ben Fish was Well, yes. A. May On the 22nd of excerpts so the two above from the Ben May. and the 28th of It shows calls to us, because, Fish according briefs tell Landing, Crows Both calls California. contract, supposedly the terms of their Ben are to I’m quite the same number and agreed purchase product Fish had of phone sure that number is their business very seed stock which was his own. talking down there. I’m about exceedingly strange It is that neither of company’s phone. business excerpts respectively the two found at seen, readily testimony, As is that of bit pages opening page 1 of the brief and provide any does not for the substantiation closing supported by any brief are cita- proposition agreed that Ben was record, transcripts, tion to the or to Fish enter contract with & Son would into a the exhibits. This is not a matter of small The purchase Clements to these beans. Appellate judges op- moment. have two fact of the matter is that Clements lacking in quality. tions when a brief is so land agreeing to devote 80 acres of his first, and one which has taken our raising crop for Ben of a seed bean camp, into Chief Justice is believe Fish, cultivating harvesting, including and the author of the brief would have said delivery, per and all for a share of $21 it, option if it were not true. The other is pounds hundred of beans. appellate judges for to search the record appellants seemingly go afield in far painstakingly ques- in order to ascertain if trying persuasive Ben to be Fish & just might happen tionable assertions to be promise buy” was a “to Son’s involvement Compounding true. this unusual circum- none) (of there was the ultimate stance where we are left to wonder what is he whereas in truth was the actual owner not, page opening and what is on 4 of the joint of the seed stock and entered into a during are brief we told that week owning in him venture which would result 22-28, “it was that Ben therefrom, product derived all Fish & Son would enter into a contract with subject only to his contract with Clements plaintiff purchase these beans that be recom- whereunder Clements would Shields____” only he was effort, time, expenses pensed for his 3,” which, cite we see is “Plaintiff’s Exhibit figure per weight of a set hundred $21 course, we do have and which shows us harvested beans. calling a contract which is not a contract is correct Although Ben Rath- the Chief Justice purchase Fish to seeds! er, Ben believing relationship between it is for to raise those seeds that the Clements ought be con- not to for Ben Fish. and Clements prior cases overruling of the bailment, good sugges- urged the that one sidered a grow- indulged in the fiction that he then which pales significance when tion bailment, contract was transac- er/seedman’s to declare it to be a sales proceeds prod- gathering in all of the the seedman tion: grower’s agreed share other than the uct 29,1985, Thus, May on when Shields (if in the con- provision such a there was 6, 1985, voided the March Clements tract), there was no third vote. With tract, and Ben Fish and when Clements exist, Judge having continued to fiction into their bean seed contract entered Swanstrom, Judge in error. Smith was not day, agreeing that same Clements dissenting the instant opinion in his when plant and harvest lima bean by the controversy first decided Court possession, already which it had in its abundantly Appeals, made it clear buy the agreeing and Ben Fish was Smith, opinion authored the unanimous harvested under the terms Keeton, C.J., Porter, J., Tay- joined by conditions set out in the bean contract. JJ., lor, McQuade, sway. still holds added). (emphasis At 814 P.2d at 920 57, 59, 324 Campbell, 80 Idaho Kent v. jus- Paramount to the views of this “one in his Judge Smith tice,” then- the conclusion is belied point. makes that memorandum also It existing facts and circumstances. This as constituted set out canceled true that Shields and Clements contract, pertinent portions none their and it is true that Clements bailment, bailor, which contained the words plant the lima agreeing and harvest or bailee: It is that Ben Fish bean seed. not true agreeing buy crop. Company agrees to furnish the the harvested The agreeing pay pur- the stock seed for such

Fish was Clements for Grower with services, aforesaid, pose in use of his land and for his a share the amount the title to product computed crop seed and to the seed of the at the contractual- such stock ly stipulated per pounds produced hundred therefrom to be and remain at $21 Company except other- harvested beans: all times wise stated. plaintiff contracted with the defen- [T]he receipt crop by the crop dant to from the seed ... The of the Idaho, purchased Company acceptance it had from Shields of shall not constitute crop Inc. The and seed failed to mature thereof hereunder. plaintiff brought against this action defendant, advancing several theo- shall, Company It is that the ries, including implied breach of warran- delivery crop, after to it of such examine ty. and test the same to determine whether

Excerpt opening from the Ben seed brief at it is merchantable and of satisfac- Company’s tory germination, and the de- thereof shall conclusive as to cision be declaring In that the Clements/Ben Fish accepted crop shall be or whether not contract was bailment contract Company not. The shall after such de- Judge had declared it to Smith be termination, notify the of the Grower apparently lapse Chief Justice had a result thereof. memory, forgetting of three that not one sitting other on the members court Conida, crop accepted by Compa- If

Peterson v. joined special ny, case either concurrence. the amount merchantable deducting Judge on the thereof shall be determined Smith’s views were based amount delivered the Grow- existing actual state of the law. While the from the as, us, Bakes, Bistline, J., judgment percentage and had er such two of J. — U.S.-, identity upon 111 S.Ct. 114 L.Ed.2d 173 7. “One Justice” is the conferred Supreme the writer the United States Lankford, opinion (Bryan) in the in its State examination, i.e., with a ago, a seedman’s contract shall Company after culls, The law equal grower truly the amount of unmerchanta- is not a bailment. seeds, foreign splits, up dirt and other ble cluttered with should not remain therein. There shall outmoded, material contained ancient, concept, and fictional of stock deducted the amount so, then be but, unfortunately, it is and will remain by the Com- furnished the Grower ilk are Campbell and its until Kent v. hereunder, price purchase pany and place, and yet That has to take overruled. per pound remainder at the rate for the that a very reason it is shameful for that pay- then be forthwith aforesaid shall is, unthinking by an respected judge trial able. Court, inappropriately held in er- day this applied what having accepted

ror for accepted by the is not case precedent. Ev- remains to case law still be thereto shall forth- Company, the title erroneously de- ery time that this Court Grower, in the thereupon vest error, he judge trial when most clares a not, if in possession whether his not, disservice is assuredly is a serious Company’s possession, it shall there- bench, entire trial inclusive done to the disposi- subject upon Grower’s judges no matter which echelon. all trial tion at his risk. error, is in Today it is Court which Kent, Idaho at 324 P.2d at 400. court, and the error is manifold the district opinion state: on in its Court then went respect- I grievous, which reasons recognize as drafted contracts fully strongly dissent. growers, theory of bailment. attaching spirit of informative In the the beans respondents, recognized title to by the helpful appendices, which is assisted bailor; respon- appellant, to be copy of a majority opinion’s attachment dents, bailees, requirement fulfilled the case, issue, in this I include the contract at delivery of the by their of the bailment Appeals. That opinion of the Court thereto appellant with title beans to have been the end opinion should Thereupon, appellant, bailor. reposing join I honored lawsuit. would been terminated, then, as for the bailments opinion. action of D.M. stated in the conversion 336, Forquer, 61 Mont. Ferry Co. v. & 642, 195,

202 P. 29 A.L.R. APPENDIX authority and preponderant ... OPINION, IS- APPEALS COURT OF reasoning support the rule better 31, 1990, Ct.App. MAY SUED bailment, upon the termination No. 17149 bailed, prod- thing or the identical thing, for that of or substitute uct BURNETT, J. increments, earnings together with accrued to may have gains dispute be- appeal arises from This bailment, period of the during producer. a seed a farmer and tween over, re-delivered, or delivered must be court cor- the district issues are whether by the in accord- bailee accounted (a) the Uniform Commer- rectly ruled that of the contract. the terms ance with case; (b) to this applicable cial Code was P.2d at 401. The Kent, breached producer seed had found that the might might not include partic- terms fitness for a implied warranty of compensation grower’s UCC; (c) provision deter- purpose under the ular amount, joint or a share of a set damages; would be the farmer’s the extent of mined here, fixed, as at so enterprise attorney venture to the farm- (d) fees awarded weight of beans deliv- per below, much hundred we af- explained reasons er. For grower. ered court the district judgment of firm the attorney except the award respects all Chief the same view which I remain of years fees. I thirteen shared Bakes Justice crop grown bean as price

same for a pay. earlier had warehouse I signed May The new contract are framed a convoluted The issues date, was still the seed 1985. On involving the seed sequence of transactions later would unplanted. As the evidence ware- producer, the farmer and a seed show, unusually seed had an the GBL 8-78 producer The seed is a California house. rate, rendering it more maturation slow enterprise doing business as ‘Ben Fish and crop susceptible than most seed strains to developed It numerous strains of Son.’ has if a frost occurred the fall. loss proprietary lima bean seed to meet various char- court found that this unusual district agricultural needs. In order to test to the farmer acteristic was not disclosed climates, pro- products differing the seed producer byor the warehouse. by the seed arranged through seed ware- ducer has Rather, simply the farmer was advised grown by farm- houses to have the beans ground as ‘get bean soon seed] [the country. the seed ers across preparing a field for possible.’ After strains, seed producer sent one its bean cultivation, planted farmer the GBL 8-78, testing. known as GBL to Idaho for ultimately crop in mid-June. The 8-78 seed was stored at Shields Seed Com- The seed fully had destroyed by frost before it pany, Nampa. Shields a seed warehouse matured. farmer, then contracted with the Clements Farms, Inc., grow crop a lima bean against brought The farmer this action pro- provided. from the seed The contract warehouse, seek- producer and the paid farmer vided that the would be $21.00 ing money spent at- reimbursement per hundredweight proper grade when tempting crop. the ill-fated For was delivered to the harvested here, important reasons not the warehouse warehouse. respect was dismissed from the case. With producer, the farmer asserted a to the seed early spring In the before implied warranty of an of fitness breach planted, seed had been the farmer learned under the Uniform Commercial Code. that the warehouse in financial diffi- alleged producer that the seed had farmer culty. Discussions ensued as to whether capable ma- represented the seed to be purchase would warehouse be able Following turing crop. a harvestable into year. harvested later When trial, judg- a bench the farmer received a inconclusive, proved these discussions compensatory damages and attor- ment for pro- farmer communicated with the seed ney producer appealed. The seed fees. California, exploring possibili- ducer ty agreement of a direct bilateral that II by any would avoid risk of a future default turn to the raised We now issues presi- producer’s the warehouse. The seed producer. seed We deal first with issues dent flew to Idaho the farm- and met with relating liability under Uniform Com- knowledge er. With the and consent of the Code; ques- mercial then on the we focus warehouse, producer the farmer and seed damages attorney tions of fees. signed consisting of a form a new agreement printed producer’s on the seed A provided letterhead. This new contract grow crop producer argues seed that the Uni- that the farmer would a from The apply should not produc- seed furnished seed form Commercial Code ‘stock [the the contract did har- the farmer’s claim because The farmer to deliver the er].’ goods a sale of to the producer, provide in care of not vested to the seed sale, seed warehouse; any If there was but if Shields was farmer. the Shields contends, time, prospective delivery producer it was longer no that business anticipated crop by the farmer The sale of the would made at another warehouse. be thus, producer was producer; provided contract further for the farm- new position of a seller under the producer the never in the er to receive from the seed 204 analogy provisions by variety

Code’s to a sales, of transactions other than such as argument UCC. This overlooks the fact leases, goods. bailments and loans of An- producer referred seed to itself as not., Transaction, Constitutes a What signed the ‘seller’ the contract it with the Sale, Contract or a Sale within the purported farmer. In a disclaimer of war- 2, Scope Article 4 A.L.R. 4th UCC 85 ranties, the contract stated: ‘Ben Fish & (1981 supplements). and later The Idaho purchase warrants to the extent of the Son Supreme applied has to a Court UCC price that seeds sold are as described on Bass, Leasing lease. See v. All-States Co. recognized the container within tolerances. 873, (1975). 96 Idaho 538 P.2d 1177 gives express warranty, no further Seller thereby expressed disagree has its implied.’ (Emphasis supplied.) states, ment in a with decisions few other fundamentally, producer’s More where courts have refused to extend Code argument disregards phase the first of the warranties to non-sale transactions without transaction, producer in which the fur- See, express legislative e.g., authorization. (the seeds) goods nished to the farmer. Mosher, 285, Leasing R v. 195 Mont. & W question furnishing is whether such 832, (1981); 835 Baker v. Pro goods in a commercial transaction should West, Inc., 844, 692 mark Products S.W.2d under be treated as sale the UCC. (Tenn.1985). 846 Such narrow decisions question addressed district court violating been criticized as intent obliquely, characterizing furnishing of drafters, of the UCC’s who declared in ‘bailment,’ goods which the UCC section 1-102 that the Code should ‘be lib- producer could extended. The seed now be erally applied promote construed and characterization and attacks ‘bailment’ underlying purposes policies.’ See event, argues, does the UCC Special Project, Article Two Warranties apply to bailments. Update, Commercial Transactions: An (1987). 72 CORNELL L.REV. 1159 moment, For reasons we will discuss in a controversy we do not think the bailment Supreme In our Leasing, All-States however, pause, controls this case. We purpose applying Court said that one acknowledge many reported decisions by analogy ‘implied UCC warranties is that have characterized seedman’s contracts as many warranties can be extended to trans- E.g., bailments. Washburn-Wilson Seed could not defined as sales actions which Alexie, 35 P.2d 990 Co. v. Idaho so other but which are like cases where (1934); Smith v. Washburn-Wilson Seed implied they are should be warranties Co., (1925); 232 P. 574 D.M. similarly.’ treated 96 Idaho at Smith, 36 Idaho Ferry and Co. v. Farnsworth, (quoting Implied hand, this P. 1066 On the other Quality in Non-Sales Warranties questioned characterization has been (1957)). Cases, 57 COLUM.L.REV. 653 Chapman Haney some cases. See Seed case, Supreme lease our Court not- another Inc., (1981); ‘reasoning by analogy does not ed that Warehouses, Inc., Peterson v. 98 Conida ...; require apply Article 2 in toto us to (1978) (Bakes, J., 883, Idaho apply only provisions rather we need those Bistline, J., special concurring opin- analogous.’ sufficiently which are Glenn ions). linchpin the district But the real Equipment Galey Dick Co. v. Construc- judge’s decision is not his choice of bail- tion, Inc., 216, 222, 541 P.2d underlying terminology; ment it is his de- (1975). 1190 The Court continued: warranty that the and its termination UCC setting will look to the commercial [W]e furnishing provisions apply should problem use in which the arises and ... presented in goods the commercial context reasoning only premise 2 as ‘a for Article agree. here. We the same consid- when the case involves provi- gave rise to the Code applies generally to erations that Article 2 of the UCC by analogy is not rebutted involving sales of sions and an commercial transactions circumstances.’ applied the additional antithetical goods. The courts also have

205 to the must have reason know pose, seller the buyer’s particular purpose; seller the Note, (quoting Id. at 541 P.2d at 1190 that must reason to know the also have The Commercial Code as Uniform the buyer relying is seller furnish Reasoning, Judicial 65 CO- Premise for buyer must appropriate goods; the (1965)). LUM.L.REV. judg- upon the seller’s skill or have relied Here, furnishing seed to farm- the the 28-2-315; I.C. Leas- ment. All-States § goods. The closely er resembled a sale of By at 1183. 96 Idaho at ing, seeds, producer the seed transferred the here would be analogy, requirements them, the farmer received for valuable reason to know producer that the seed had the sideration. The fact that consideration purpose for the particular the farmer’s farmer, future the consisted of services seed; producer had reason to that the seed coupled producer’s promise the with seed pro- on the relying the farmer was know grown does payment crop, of future for a seed; and appropriate to furnish that ducer logical application the not defeat the did, fact, rely upon pro- the the farmer regarding seeds UCC to issue the regarding judgment skill or the ducer’s seeds Although themselves. ‘title’ the a ques- Each these criteria frames seed. may passed produc- have from the seed employ a Accordingly, tion of fact. we farmer, Supreme deci- er the our Court’s reviewing the clear error standard dis- sions in lease it clear cases made the warran- passage trict court’s determination that that of title is not essential requirements application ty of the have been satisfied. Mar- UCC. Walker, tineau v. short, Supreme our paraphrase language Equip- Court’s Dick Glenn ment, we have examined the commercial producer that It is self-evident the seed setting in seeds were fur- bean purpose knew the farmer’s seed. producer nished the seed to the farmer. sought The farmer the seed into a We this ease involves same believe pursuant harvestable to a contract gave considerations rise the Code producer. remaining The seed provisions. perceive We no circumstances questions focus on reliance criteria— applying antithetical Code. producer reason to know whether had Therefore, analogy uphold fits. UCC we rely, whether the farmer would judge’s ruling the trial is the Code rely, producer’s actually farmer did on the applicable to this ease. furnishing appropriate judgment seed. above, a proprie- As noted GBL 8-78 was B developed It tary bean seed. question, given applicability next producer. producer owned the seed UCC, judge whether trial grow every- knew the bean would not correctly produc- determined that where; fact, producer testing implied warranty er breached an of fitness Idaho climate. GBL 8-78 particular purpose for a under UCC 120-day growing season. The required a 2-315, codified in Idaho as I.C. § growing testified that the usual farmer argues producer 28-2-315. The seed § season beans southwestern Idaho (1) implied warranty cre- was not days. implicitly The district court ated; created, (2) if it was even it was producer had found where contract; effectively disclaimed in the seeds, unique knowledge about disclaimed, (3) effectively even if it was not necessarily produc- relied—and the farmer no of the warran- there was actual breach to know the farmer er was deemed ty. each contention We will address producer’s judgment rely upon the would — turn. serve as to whether the seeds would their purpose. intended 1 parties, in argued has been that both implied In create It order for sale to an effect, produc- particular pur- unique knowledge warranty of fitness for a had —the validity of a clause.

termine the disclaimer weighed collectively. See, They must be rate, er as to the seed’s unusual maturation Peterson, 601, 604, e.g., Lee v. 110 Idaho ordinary and the farmer as to the bean- 1373, 1376 (disclaim- (Ct.App.1986) 716 P.2d growing time in southwestern Idaho. In language er found ineffective where failed view, however, ordinary bean-grow- our plainly implied warranty to state that no ing uniquely season not information Equipment existed); Snake River Co. v. farmer; possessed by the it was informa- Christensen, 549-50; 107 Idaho contrast, generally tion available. In (review (Ct.App.1984) 796-97 de- of the characteristics GBL 8-78 seed were (‘as nied) upper type is’ disclaimer in case information, proprietary generally not separately signed addendum found con- (Maurice Clements) farmer available. The Equipment, Inc. v. J & W spicuous); he testified that had known the GBL 8-78 Weingartner, 618 P.2d 862 (Kan.Ct.App. season, required 120-day growing 1980) (disclaimer printed upper case bold planted he would not have it. The record conspic- signature letters near line found indicates that in order to avoid destruction Corp. v. Nat- uous); P.E.A.C.E. Oklahoma fall, by frost in the it would have been Co., (Okla.1977) ural Gas necessary plant mid-May. the seed in (disclaimer print in small on back of doc- The contract between the farmer and the inconspicuous). ument found Because the producer yet executed on weighing essentially a of these factors is there was no disclosure to the farmer of function, fact-finding again apply a we planting the risk associated with after that clear error standard of review. Martineau date. Walker, supra. facts, Upon these find no clear error we noted, case, present In the as we have in the district court’s determination that the contract was written on Ben Fish & the reliance criteria of UCC 2-315 were § letterhead, letterhead. Beneath the Son satisfied. We conclude that there was an print smaller than that used elsewhere implied warranty particular of fitness for document, appeared purported dis- purpose. opinion. quoted claimer earlier this judge rejected trial this disclaimer as incon- print spicuous, noting that ‘it fine [was] producer’s We now consider the seed ar- top page’ at the under the letterhead gument effectively it disclaimed plain that an and that it failed to ‘make it Supreme implied warranty of fitness. Our disclaimed.’ implied warranty been [had] implied warranty Court has stated that the printed, so The disclaimer clause was disclaimed, of fitness can be but discloses, in a far as the record before us strictly language courts will ‘construe ne- contrasting Upon ink color. these facts we gativing implication of such a warran- judge’s clear error in the trial deter- find no Equipment ty.’ Glenn Dick 97 Idaho the disclaimer clause was mination that Disclaimers must 541 P.2d at 1193. uphold the inconspicuous. We therefore conspicuous. writing I.C. that the disclaimer was judge’s conclusion A must determine 28-2-316. trial court § ineffective. the disclaimer is ‘so written that a whether person against whom it is to reasonable ought to have noticed it.’ I.C.

operate 28-1-201(10). § warranty not dis- Because claimed, determination, question next is whether making the court document, In an action for breach compar- was breached. must examine the entire warranty, buyer has a bur- implied ing the disclaimer clause to the rest of prepon- establishing the breach den of for various relevant factors —lo- document Dickerson v. size, ink of the evidence. cation, type contrasting type, col- derance Co., Equipment etc. None of these Mountain View terms, or, vagueness of (Ct.App.1985). 711, 716, alone, factors, standing necessarily will de-

207 cy support of sum evidence the awarded by the trial court. We discuss will these producer Whether the seed breached its in turn. contentions warranty in this case question was a Walker, the trier of fact. Martineau v. 1 supra. producer argues The seed that the trial producer The seed contends that there by allowing court erred the farmer to claim breach, although was no argument— expenses rather reimbursement than closely when actually seems examined— profits, require lost which would the court occurred, be if breach that did it not the ascertain difference the val- between cause the farmer’s loss. The seed crop actually ue of the and the raised producer maintains that failure the that would have been under raised normal produce seeds a crop was to the due conditions, maturing, less the costs of har- pro- farmer’s own error. the Specifically, vesting delivering crop. gen- the See points ducer to the fact that the seeds were erally Casey Nampa and Meridian Ir- warehouse, plant- and available for Disk, 299, 304, rigation 85 Idaho 379 P.2d ing, early as March. The farmer did not (1963). 411 Our examination of the plant pro- them until mid-June. The seed record, however, pro- reveals that seed argues ducer if planted the farmer had ducer failed raise this issue before the by the GBL seed mid-May, 8-78 he would Although producer trial court. obtained crop. harvestable The dif- vigorously disputed expenses claimed ficulty argument with this is that it focuses farmer, by the it argued never below—so period on a time when the con- farmer’s far as our record reveals—that correct warehouse, tract was with with not damages profits measure rath- lost producer. Any seed delay peri- during that expenses. er than reimbursement of od legit- occasioned the farmer’s effect, the case was tried on farmer’s imate over concern the warehouse's finan- interest, assertion of a reliance rather than cial condition. interest, expectancy seed-grow- an in the Focusing particularly more on farm- ing generally contract. See Brown v. er’s transaction with the producer, d’Alene, Ltd., Yacht Club Coeur 111 dispositive fact—as found the district 195, 198-99, Idaho 1065-66 producer court—is signed new (Ct.App.1986)(discussing these different in- directly contract on farmer pertinent terests recoveries producer even though the knew that the each). seed was then in ground. not appellant An bound the issues and producer implicitly planting recommended upon theories which the case was tried date, the seed after that and the farmer did Although below. judgment may be sus- so. The farmer’s actions were consonant upon any legal tained theory, theory a new with a reasonable belief that the GBL 8-78 employed cannot on appeal attack the seed, like other bean seeds he planting judgment. Beaupre v. 109 Kingen, year, would have a normal maturation (1985); P.2d Heckman period. circumstances, per- Given these we Ranches, State, Inc. v. ceive no judge’s clear error in the trial profits lost Because the findings a breach warranty oc- theory damages below, was not framed curred and that it caused the farmer’s loss. properly ap- is not Court on before this

C peal. will not pursue We it further. damage We now turn to the issue. The producer damage attacks the award First, producer two fronts. producer effectively pre- The seed did tends that trial applied objection court incor- quantification serve its legal rect in measuring damages. standard damages light presented. of the evidence Second, producer disputes Damages sufficien- breach of need

208 by analogy;

fying application of the UCC analogous policy reasons for exten- but the exactitude; proved with mathematical be carry do not over sion of UCC warranties beyond specu- they simply proven must be attorney questions. fee County Highway v. lation. Haener Ada do this case warrants Neither we believe 174, 1184, Dist., 170, 108 Idaho 697 P.2d discretionary attorney un- a award of fees (1985); 912, Hulet, Wing 1188 v. 106 Idaho I.C. 12-121. An award under that der § (Ct.App.1984). 314 We will not 684 P.2d only upon finding a statute could be made damages judge’s disturb a measure of un- producer against defended clearly erroneous. Gage, less is Davis v. ‘frivolously, complaint the farmer’s unrea- 1029, (Ct.App.1985). 109 Idaho foundation____’ sonably or without I.R. Here, figures supporting the dollar 54(e)(1). The district made such C.P. court not be recounted in detail. evidence need explanation doing a finding, but its so say provided It suffices to the farmer part producer’s in on the seed fail- focused thorough court with a breakdown of respond a ure to offer settlement costs, records, calculated from extensive any by the farmer. Our settlement offer Although accepted. the trial court Supreme Court has held that refusal producer disputed many the seed of the engage negotiations in is not a settlement figures, farmer’s the trial court found them permissible awarding attorney basis for find to be reasonable. We no clear error Coleman, 817, Ross 114 Idaho fees. See v. determination, trial court’s and we will 1169, (1988). Ross, 761 P.2d like 1188 not disturb it. court Myers, was decided after the district present ruling made its case. D producer attorney An fees under I.C. Finally, challenges award Where, attorney 12-121 is a matter discretion. trial court’s award of fees § here, an of discretion has predicated farmer. court this award such exercise error, 12-120(3) by legal ap- upon proper tainted provision a I.C. which been § pellate response usually is grant attorney a fees to the to remand mandates light party ‘any civil action case for reconsideration in prevailing ... [on] transaction____’ proper legal Kunzler v. any commercial ref- framework. (Ct. Kunzler, 109 transaction’ was 461 erence to ‘commercial 1,1986. A how- July App.1985). unnecessary, remand is added to I.C. 12-120 on We § held, Vermaas, ever, appellate court is convinced Myers have 114 Idaho when v. ruling (Ct.App.1988), P.2d 296 lower court’s abuse event. Id. may of the statute discretion version prior applied to a case filed effective Here, producer’s of the seed the issue date of the amendment. This case was liability predicated upon extension of the — March, Consequently, filed in fairly debata- analogy been a UCC —has should not have 1986 version of statute throughout litigation. At- question ble applied. In fairness to the district been torney I.C. 12-121 are fee awards under § he not have the judge, we note that did nonprevailing party improper where the ruling when he made his Myers benefit fairly presented ‘genuine and debata- has the present case. Amalgamated Sugar Wing ble’ issue. v. 905, 911, Moreover, 106 Idaho do not think the case falls we Moreover, held (Ct.App.1984). we have pre-1986 I.C. within the version inappropriate attorney fee Although that an award is 12-120. that version refers § is not 12-121 if the case ‘any action to recover on ... con- under I.C. civil § [a] but existing Idaho authorities purchase or sale of trolled relating tract develop Idaho case helped ‘has strictly speaking instead goods,’ this case— —did subject.’ Boydstun goods.’ law on the Shelton not involve ‘sale of As we Ass’n, P.2d 1005 par- Beach explained, the transaction between due Accordingly, with all sale, justi- (Ct.App.1982). closely thereby ties resembled respect capable judge, to the district we

hold that the attorney award fees

case was abuse of discretion must

be reversed. summary, judgment district respect

court is affirmed to liability damages, respect but is reversed with (exclusive attorney fees. Costs attor- fees)

ney are on appeal awarded

respondent-farmer.

WALTERS, C.J., concurs. FARMS, INC.,

CLEMENTS

Plaintiff-Respondent, SON,

BEN FISH & and Paul L.

Dompe, Defendants-Appellants.

No. 17149.

Court of Appeals of Idaho. 1990.

Petition for Review Granted

Dec.

Case Details

Case Name: Clements Farms, Inc. v. Ben Fish & Son

Court Name: Idaho Supreme Court

Date Published: Jun 14, 1991

Citation: 814 P.2d 917

Docket Number: 19047

Court Abbreviation: Idaho