Ellsworth Strickler v. Pfister Associated Growers, Inc., a Corporation Whose Home Office is Aurora, Illinois, a Delaware Corporation
319 F.2d 788
6th Cir.
1963
Check Treatment

*1 STRICKLER, Plaintiff- Ellsworth Appellant, GROWERS, ASSOCIATED

PFISTER Of INC., Corporation Home Whose Illinois, Cor Aurora, Delaware fice Defendant-Appellee. poration, Court of Circuit. Sixth

July Clark, Russellville, Ky.,

J. Granville appellant. Sullivan, Miss., Clarksdale, L. Charles McCracken, Jr., Franklin, Ky., R. Sam Dunbar, Clarksdale, Talbott, & Sullivan appellee. Miss., CECIL, Judge, MIL- Before Chief FOX, LER, Judge, Circuit *2 789 purposes MILLER, Jr., sold, Cir- it and for which SHACKELFORD was yield the reduced was the seed cuit because corn purposes. fit for The such brought this action Plaintiff complaint sought recovery for value damages in the to recover state court per of this difference 45 acre of bushels amountof alleged $12,000.00 breach making com, for the 170 of acres female connec by the defendant (cid:127)of a total of 7650 bushels. production contract tion with a The removed action was involve the The sale -of corn. action seed by plaintiff, seed defendant to to United States but, contrary, without a bailment tried to the Court involves where it was joint or a complaint found for jury. venture. The a alleged appeal implied followed.1 This breach an warranty. theAt time com- trial grow- prior corn to the 1959 Sometime plaint allege was amended to a breach ing season, plaintiff, Ellsworth express warranty stating by Logan County, Strickler, farmer a represented defendant Kentucky, written a con- entered into yield of the corn would be com- Asso- Pfister bract with parable hybrid to commercial field com grow Growers, Inc., 220 acres to ciated generally “this was understood plants production for the of foundation industry.” designated hybrid corn as of a seed anywhere We fail defendant to find 633. Under the contract agreed express warranty. written re- contract an seed foundation to deliver agreed quired to furnish cross-examination ad and the mitted any point he cultivate the could not and to land growing crop the contract that in a husbandlike manner. constituted warranty. planting, supervise Parole evidence is in Defendant towas vary detasseling admissible to of the com. cultivation and of written contract. Executrix, Bills’ corn on dates Tross Plaintiff to harvest 189 Ky. 115, 120, 660; 224 S.W. and deliver to (cid:127)determined defendant Differential MacDonald, Steel Car acceptable Co. v. the defendant all com 260, 270, C.A.6th. purposes, defendant for seed for which has no agreed cause of action for pay per defendant $1.15 Chicago bushel, provided that if the grain this, price was more than would merit There more higher pay price. transaction tention that the included an Ice Graves performance contract, Rudolph Cream W. Wurlitzer Co. v. plaintiff planted 50 of male acres com 819; Ky. 1, 4, Sears, 100 S.W.2d 267 and 170 acres of female corn. The fe- Lea, Roebuck & Co. male detasseled However, these C.A.6th. cases defendant in order that acres expressly parties hold that the can also pollinate male corn would the female against warranty, stipulate hybrid produce com rights parties in which event strain No. which the defendant was expressed those are confined Although purchase. pollen plants to produced grain per acre, bushels of plants producing Paragraph provided, seed did not fill out adequately produced Company, “The bushels its own per any may field, part acre. Plaintiff claims that 87 bushels abandon the seed per agreement field, acre would have been the covered normal seed detasseling, damage improper for the 170 female corn acres of because of by windstorm, hail, if the corn had fit for the caused excessive parties they 1. The bewill referred to as were Court. insects, rainfall, pests, sion on our find- or for does not make the ing “clearly may justified to com- erroneous.”

reason which seem pany.” National v. Boards, Association Real Estate *3 339 U.S. 70 S.Ct. Judge the The District 711, 94 L.Ed. 1007. of the that this Wedding strongly tract, upon in connection relies considered Duncan, Ky. 374, of v. provisions, risk meant that the S.W.2d plaintiff purchaser and where loss was assumed of seed recovered damages warranty express that had war negatived by ranty nothing express of the find in. We controlling aptly pres that in that it was case which He stated is possible ent not event to create case. In that same case contract was- an oral in the defendant to abandon one and the factual issue a whether contract and right time create at same contained an war ranty plaintiff in the a war of fitness recover on submitted to ranty jury, rejected which found He that such a the; given. present had been claim of an im for breach In case plied We concur in the rul is written and contains no ex ing. press warranty. Also, in that case the' factual issue of the of the seed! fitness assume, contrary If we to what which; jury, was submitted to the ruled, we have hereinabove there conflicting- plaintiff found for the on the was an of fitness in the case,, present evidence before it. In transaction, we still fail to find merit such factual issue was submitted to the appeal. The District found judge, who found for the defendant on prove as a fact that the failed to conflicting evidence before him. pointed that the seed was defective. He The evidence was not the same in the according evidence, out that to the there finding two cases. The in the earlier separate are 24 development: factors which affect way controlling case in no of the find temperature, moisture, ing case. See: United compounds, past essential crop- nutrient Clay Artware, &Brick v. Deena Workers ping history land, others; 637, 642-643, 6th, cert. that there are infinite number en- denied, 344 U.S. 73 S.Ct. presented inquiry; vironments L.Ed. 694. eificacy of the seed is one infinity; argument in this factor there appeal,, the oral of this many although are too variables which influence in included his process development injected of corn pin tiff possible into the case lia- poor single upon any bility the blame for by- of the defendant testimony one these. The directing Dr. reason of its in ; Loeffel, Frank E. planting Associate Professor of manner of of the corn. This (cid:127) Agronomy University of Ken- was based the fact that at the close (cid:127) tucky, White, Sr., Jimmy H. E. the evidence the District Wayne supported finding Tuck this complaint. moved to amend his Judge. Although proof, present. was a to conform to the so as to conflict the evidence on this issue of this issue objected, contending Court. The defendant. fitness, finding clearly is not presented'.’, errone- that this accepted by ous and must case, upon us on this a new issue which it. 52(a), Rule review. Rules of Civil Pro- would want introduce additional evi- n enough might cedure. give It is not that we dence. Court sustained the motion re-, facts construction, gave days another five in which to» ambiguities - differently, amendment, solve and file the reach conclusion different from the amendment was- after filed, of the District proof by way Such conclu- offer of:

79T ing depositions clearly issue it wanted on that erroneous. Rule (a), record from the Federal do so. do not find Rules Civil Procedure. We complaint was amended such an opinion, pointed As the out in its court ever filed. give if we were to construc- a different 15(b), of Civil Rule Rules facts, not make Procedure, authorizes Judge’s finding clearly errone- plead permit amended to ing ous. proof, but to conform to judg- I concur in the affirmance of the granting refusing amend leave to so ment the District Court. particular (cid:127)under the circumstances judge. the trial the sound discretion of *4 Railway Chesapeake & v. New Ohio Co. 6th; 812-813, man, 804, 243 F.2d C.A. Co., Insurance Wibbelman v. Home 262, In the exercise of

F.2d C.A. 6th. granting of leave in order to

to amend can be conditional prejudice opposing party.

avoid Employers’ Cooper American See: v. Co., 303,

Insurance leave 6th. In the case the C.A. America, UNITED STATES of amend was conditional Appellee, days, (cid:127)of such an amendment within five v. to take in the defendant proof FAGO, Appellant. after it was filed. The Dominick S. comply condi did not with this Docket 27815. file waived his United Court States the amendment. The issue of Second Circuit. upon by the not discussed or ruled Argued June Judge in his Memorandum n Opinion findings. The issue was Decided June ap on not raised in brief peal. It not before us this review. Metal v. McLouth Cold Process Co. Steel 6th; Corp., 369, 380, F.2d C.A. Doll 6th; 186, 190, Glenn, F.2d

Lively Elkhorn Coal 6th.

399 C.A. judgment is affirmed. Judge (concurring).

FOX, District concur with the court’s I ground Dis-

this matter found as a trict fact prove the was defective.

tiff failed to Judge properly has dis- questions in relation to of fact cretion coming him. before Conflicts in evi- dence, be, can best be de- who sees the

cided they are marshalled before the

facts as apparent that his fact find-

(cid:127)court. It is