Mervin DURHAM, Plaintiff and Appellee, v. CIBA-GEIGY CORPORATION, a North Carolina Corporation, Defendant and Appellant, and Balcom Chemicals, Inc., a Colorado Corporation, d/b/a Growers Ag Service, Defendant, and Tom Varilek and Elvern Varilek, d/b/a Varilek Farm Service, Defendants and Appellees.
No. 13402.
Supreme Court of South Dakota.
Decided Feb. 10, 1982.
Rehearing Denied March 17, 1982.
315 N.W.2d 696
Considered on Briefs Nov. 17, 1981.
The judgment is reversed, and the case is remanded to the circuit court for the entry of judgment consistent with the views set forth in this opinion.
DUNN and MORGAN, JJ., and HECK, Circuit Judge, concur.
HENDERSON, J., concurs in result.
HECK, Circuit Judge, sitting for FOSHEIM, J., disqualified.
Lawrence L. Piersol and Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant Ciba-Geigy Corp.
John L. Morgan and Chip J. Lowe of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendants and appellees.
DUNN, Justice.
This action was commenced for recovery of damages suffered by appellee Mervin Durham (Durham) arising from an alleged breach of warranty by Ciba-Geigy Corporation (appellant), the manufacturer; defendant Balcom Chemicals, Inc. (Balcom Chemicals, Inc.), the distributor; and appellee Varilek Farm Service (Varilek Farm Service), the seller. Durham claimed that the herbicide “Milogard” failed to control the growth of the weed foxtail in his milo crop. Varilek Farm Service counterclaimed for the cost of the fertilizer and herbicides sold to Durham. Balcom Chemicals, Inc. cross-claimed against Varilek Farm Service for the balance due on its open account. The jury awarded Durham the sums of $7,500.00 for crop loss, $5,038.49 for fertilizer expenses and $2,465.00 for the “Milogard” purchased from appellant. It also awarded
Durham purchased herbicide from Varilek Farm Service for use on his 1979 milo crop near Lake Andes, South Dakota. Varilek Farm Service broadcast the herbicide onto Durham‘s farm land in May of 1979. Durham incorporated the herbicide into the ground using a disc. The milo seed was double-row planted four to six days after the herbicide was incorporated, and planting was completed by May 20, 1979.
On June 1, 1979, Durham noticed the appearance of foxtail weed in his milo. He reported the presence of the weed to Varilek Farm Service, who relayed the complaint to appellant‘s sales representative. Appellant‘s representative examined Durham‘s farm and acknowledged that foxtail weed was present in the fields. Due to the foxtail weed problem, Durham‘s crop yield was low.
Appellant contends that the trial court erred in refusing to grant its motion for summary judgment based on Durham‘s failure to file a damage claim with the Department of Agriculture under
Any person claiming damages from a pesticide application shall file with the secretary on a form prescribed by the secretary a written statement within thirty days after the date that the damages occurred. If a growing crop is alleged to have been damaged, the report must be filed prior to that time that twenty-five per cent of the crop has been harvested.
Appellant argues that the filing requirements of this statute serve as either a condition precedent or a statute of limitations barring Durham‘s cause of action because he failed to comply with the filing requirements. This argument is not valid for several reasons.
First,
Second, a plaintiff would generally have a four-year statute of limitations for a breach of warranty action.
Third, appellant contends that statutes similar to
Appellant next contends that the trial court erred in admitting the testimony of Sherman Koopal. Koopal testified that he applied the herbicide “Milogard” in 1979 to his milo fields, and that the herbicide failed to effectively control foxtail weeds in his fields. Appellant claims that because of the dissimilarity between Koopal and Durham in their farms’ soils and farming techniques, the testimony should have been excluded as irrelevant. We disagree.
The testimony of the two farmers does indicate a few differences, namely: Koopal‘s soil was sandy loam, Koopal applied his own herbicide and incorporated it with a tandem disc, and Koopal used a single-row planting technique and repeatedly hoed and cultivated; Durham‘s soil was silt loam, Durham‘s herbicide was custom broadcast and incorporated with a tandem offset disc, and Durham used a double-row planting technique and did not harrow or cultivate his field. The two fields were located twenty-five miles apart.
The trial court found Koopal‘s testimony admissible after considering the evidence of similar difficulties experienced by both farmers following application of the same herbicide. (See Moosbrugger v. McGraw-Edison Company, 284 Minn. 143, 170 N.W.2d 72 (1969) wherein evidence of similar difficulties in identical machines was held admissible.) This court has held that the question of whether evidence is immaterial, conjectural or remote must be left to the practical judgment of the trial court and rests largely in its discretion. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977). We hold that the trial court did not abuse its discretion in admitting Koopal‘s testimony to show that the “Milogard” herbicide was defective in his field.
Appellant contends that the trial court erred in finding the disclaimer of warranty and limitation of consequential damages clause unconscionable and against public policy. Thus, appellant contends that Durham should have been denied recovery of all damages. We disagree. Appellant‘s conditions of sale and of warranty states:
CIBA-GEIGY warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes referred to in the Directions for Use ... CIBA-GEIGY makes no other express or implied warranty of fitness or merchantability or any other express or implied warranty. In no case shall CIBA-GEIGY or the Seller be liable for consequential, special or indirect damages resulting from the use or handling of this product. [The last two sentences are in bold print.]
However, the general information section of the label provides: “Milogard 4L controls annual morningglory, carpetweed, lambs-quarter, pigweed, ragweed, foxtail, smartweed, and velvetleaf.” (Emphasis added.)
Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
To create an express warranty, the seller need not use formal words such as “warrant” or “guarantee” or specifically intend to make a warranty.
The general rule regarding the award of damages arising from a breach of warranty states that the buyer “may recover as damages for any nonconformity of
The public policy of South Dakota is set forth in the Insecticide, Fungicide, and Rodenticide Act of 1947,
In this case, loss of the intended crop due to ineffectiveness of the herbicide is inevitable and potential plaintiffs should not be left without a remedy. Furthermore, the purchasers of pesticides are not in a position to bargain with chemical manufacturers for contract terms more favorable than those listed on the pre-printed label, nor are they in a position to test the effectiveness of the pesticide prior to purchase. These considerations have been considered by courts in refusing to enforce unconscionable contracts. See Bank of Indiana, Nat. Ass‘n v. Holyfield, 476 F.Supp. 104 (D.Miss.1979).
We held in a similar case, Swenson v. Chevron Chemical Company, supra, that public policy should not allow a chemical manufacturer to avoid responsibility for the ineffectiveness of a product which was offered for one purpose, the effective control of corn rootworm larvae. To reach this conclusion, we relied on Judge Fruge‘s dissent in California Chemical Company v. Lovett, 204 So.2d 633, 639-40 (La.App.1967) which questioned:
“whether or not public policy should permit the commercial enterprise to produce a product, advertise it, and place it on the market making representations that the product is designed to serve one particular purpose, and then totally avoid any and all responsibility on its part, should the product fail to be suitable for the purpose it was intended and represented to serve. ... And even if it be said that the defendant intended only to [sic] purchase of the chemicals as specified on the containers themselves, nonetheless, it is unmistakable that his motive for purchasing those chemicals was to receive a product which would be effective as an insecticide, which motive was known to the other party; and the ineffectiveness of the chemical compound as an insecticide must be deemed as error in the motive or cause of the contract thereby invalidating the contract itself.”
89 S.D. at 502-03, 234 N.W.2d at 42 ([] in original).
The legislature of this state has spent considerable time and effort in establishing the law of warranty in South Dakota, and the damages that are recoverable for a
We agree with the trial court‘s determination that appellant‘s disclaimer of warranty and limitation of consequential damages clause is invalid as unconscionable and contrary to the public policy of this state.* See Klein v. Asgrow Seed Company, 246 Cal.App.2d 87, 54 Cal.Rptr. 609 (1966); Gore v. George J. Ball, Incorporated, 279 N.C. 192, 182 S.E.2d 389 (1971) (finding limitations of damages clause on improperly labeled seeds violative of public policy). But see Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566 (1975). We also agree with the trial court that the remainder of the contract should be enforced exclusive of the unconscionable clause and affirm the damages award for crop loss, fertilizer costs, and chemical costs. See
Appellant contends that the trial court erred in awarding Durham interest when the jury was not instructed on and did not enter an award of interest. We disagree.
Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day[.]
If it is apparent that the jury has failed to include an interest award in its verdict, the trial court has the power to add interest to the verdict if the party is legally entitled to interest. Engelberg v. Sebastiani, 207 Cal. 727, 279 P. 795 (1929); Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455 (1945); Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499 (1926).
In this instance, the cost of the “Milogard” and fertilizer represented damages certain or capable of being made certain by calculation which vested on a particular day in compliance with
The decision of the trial court is affirmed.
HENDERSON, J., and MILLER, Circuit Judge, concur.
WOLLMAN, C. J., and FOSHEIM, J., concur in part and dissent in part.
MILLER, Circuit Judge, sitting for MORGAN, J., disqualified.
WOLLMAN, Chief Justice (concurring in part, dissenting in part).
Although I agree with the majority opinion‘s interpretation of
I do not believe that it is fair to characterize appellant‘s product as having been falsely labeled or misbranded within the meaning of the labeling requirements set forth in
The Directions for Use of this product reflect the opinion of experts based on field use and tests. The directions are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks inherently associated with use of this product. Crop injury, ineffectiveness, or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of CIBA-GEIGY or the Seller. All such risks shall be assumed by the Buyer.
Given these variables, all of which are beyond the control of appellant or any other manufacturer of herbicides, I conclude that it was eminently reasonable and, perforce, not unconscionable for appellant to include the disclaimer of consequential damages. I find the carefully reasoned, soundly considered decision of the Minnesota Supreme Court in an analogous case to be applicable to the case at bar:
AAtrex 80W is a highly technical specialized chemical developed and used for selective control of certain weeds or plants growing in common with other plants. A University of Minnesota Agricultural Extension Service Bulletin in evidence reports numerous experiments with herbicides, indicating that even where the product is applied under controlled conditions by experts, there is a certain percentage of failure to obtain good control. It is general knowledge, as the trial court in that rural area noted, that the eventual yield of a farm crop, such as corn, is affected by numerous and varied factors such as soil, weather, seeds, weeds, and other conditions. Considering the nature of the product itself and the multitude of conditions and factors that affect its effectiveness or its degree of effectiveness, limited favorable results could be anticipated. Finally, it is clear that the risks of failure were fairly disclosed to plaintiffs at the time of purchase in these words:
“* * * Crop injury, ineffectiveness or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of Geigy or the Seller. All such risks shall be assumed by the Buyer.”
We accordingly agree with the trial court‘s conclusion that these facts of nature and the nature of the product make conscionable the stated exclusion of consequential damages.
Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566, 572 (1975).
It is true, as the majority opinion points out, that our legislature spent considerable time and effort in deciding whether or not to adopt the warranty provisions of the Uniform Commercial Code. As finally adopted, however, those warranty provisions also included
I would set aside that portion of the judgment that represents an award for consequential damages resulting from the alleged diminution in crop yield.
I am authorized to state that Justice Fosheim joins in this concurrence in part and dissent in part.
ROGER L. WOLLMAN
CHIEF JUSTICE
Notes
In light of the cases decided thus far, we suspect that whenever a consumer‘s blood is spilled, even wild horses could not stop a sympathetic court from plowing through the most artfully drafted and conspicuously printed disclaimer clause in order to grant relief.
J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code 485 (2d ed. 1980).