147 Wis. 166 | Wis. | 1911
The contract for the sale of the peas contained' the following provision:
“It is also understood and agreed that the party of the first-part [plaintiff] does not give, and its agents and employees are forbidden to give, any warranty, express or implied, as to description, quality, productiveness, or any other matter, of any seeds, delivered or to be delivered by it, and that it is not,, and will not be in any way responsible for the crops.”
Counsel for the appellant admit “that plaintiff is freed by the terms of this contract from all liability as to the seed in question being good or bad, large or small, wrinkled or smooth,, black or white, wormy or sound, vital or dead.” But counsel argue that the peas furnished under the contract must be of the “Advancer” variety, and that plaintiff was not relieved:
Counsel for appellant cite the following authorities to sustain the contention that, notwithstanding the agreement of the parties, there was a warranty that, the peas sold would answer the description contained in the contract, or in any event that there was a breach of a condition of the contract by the failure
If the seller expressly refuses to warrant, there can be no excuse for raising an implied warranty. Rodrigues ads. Habersham, 1 Speers (S. C.) 314; Farr v. Gist, 1 Rich. Law (S. C.) 68; Fauntleroy v. Wilcox, 80 Ill. 477; Lynch v. Curfman, 65 Minn. 170, 68 N. W. 5.
The case of Blizzard Bros. v. Growers’ C. Co. (Iowa) 132 N. W. 66, is directly in point. There a package was marked “Large cheese pumpkin seed” and sold as such, when in fact it contained “Connecticut pie pumpkin seed” mixed with a few squash. On the package the following warranty was printed: “While we exercise great care to have all seeds pure
As before stated, we do not hold that, if the plaintiff acted in bad faith and with the intention of deceiving and defrauding the defendant, or even if it failed to exercise due care and caution in selecting the seed, the latter would not have a cause of action for the resulting damage. ISTo such cause of action has been stated in the counterclaim and no claim was made on the argument that any such cause of action was relied upon or existed.
The ruling of the trial court excluding testimony tending to show that the peas furnished were not “Advancer” peas was correct on the record presented. There was present but one of two elements that were necessary to constitute a cause of action. The element of bad faith was not presented by the pleadings, and no claim was made by counsel that such bad faith existed. We find no error in the record.
By the Court. — Judgment affirmed.