150 Mo. App. 431 | Mo. Ct. App. | 1910
The plaintiff sues for damages on an implied warranty in the sale of certain seed.
Plaintiff alleges that the defendants sold him fifty pounds of seed of the kind and quality known as “orange cane seed;” that he believed it was such, and that defendants knew he was buying the seed for the purpose of planting several acres of ground. Plaintiff further alleges that the seed so purchased was a mixture of kaffir corn, broom corn and various.kinds of cane seed; that the crop raised from the seed was worthless; and that he was damaged thereby in the sum of four hundred dollars.
The defendants answered with a general denial and set up: That they did not offer to sell respondent the cane seed designated in the petition; that they did not keep in stock or pretend to sell any kind or quality of cane seed; that the cane seed in question was specially ordered for plaintiff as an accommodation to him from a reputable merchant; that when the seed arrived they were inspected by plaintiff and accepted by him and that defendants made no representation as to the kind and quality of the seed and that plaintiff did not rely on any representation made by them.
The defendants were hardware merchants doing business at Milan, Missouri, and did not handle seeds except a few for garden purposes. When a customer desired seed for planting the defendants obtained such seed as a matter of accommodation to customers, but at the same time defendants charged a small profit for handling such seed.
The plaintiff’s evidence tends to show that when he applied to defendants at their store for cane seed
The seed did not prove to be “orange cane seed,” but germinated properly and produced an abundant crop of various kinds, such as broom and kaffir corn and other kinds of cane which was practically worthless to plaintiff, and as a result he suffered a substantial damage.
The plaintiff recovered and defendant appealed.
The court tried the case upon the theory that: If before a sale, the buyer discloses to the seller his intention to purchase the article for a special use; the latter in making the sale at a sound price, agrees by implication that the article is free from hidden defects that would impair its usefulness for such purpose; and that the seller’s want of knowledge of such defects will not relieve him, for his liability as warrantor infixes the contract of sale by his assurance, express or implied, that the article is suitable for the purpose of its intended use. The theory of the court is supported by authority. [Moore v. Koger, 113 Mo. App. 423; The New Birdsall Co. v. Keys, 99 Mo. App. 458.]
The defendants combat this theory and say, “A warranty of the fitness of a chattel for a certain purpose is not implied necessarily because the seller knows the buyer is buying it for such purpose. Courts do not treat the doctrine of implied warranty of fitness as an uncon
The case here was sent to the jury • on, this theory and therefore finds support in both the appellate courts mentioned.
The defendants further contend that the jury were authorized under the instructions to estimate the value of a crop not raised, by one that might have been raised which was never planted; and which was a remote and problematical contingency. [Knight Bros. v. Railroad, 122 Mo. App. 38; Standly v. Railroad, 121 Mo. App. 537.]
However the element of uncertainty was eliminated. The crop planted grew and thrived and it was shown with reasonable certainty the value of the crop raised if it had been the product of “orange cane seed.” [Gildersleeve v. Overstolz, 90 Mo. App. 519; Manter v. Truesdale, 57 Mo. App. 435; Reynolds v. Tel. Co., 81 Mo. App. 223.]
What has been said disposes of every material point raised on the appeal. Affirmed.