Herrera v. Johnston

VAN DYKE, P. J.

This is an appeal from a judgment in favor of the appellant as plaintiff in the trial court, in the amount of $11.25, in an action to recover damages for a breach of warranty.

In the main, the facts out of which this litigation arose are not in dispute. The appellant purchased $11.25 worth of zucchini seed from the respondent which proved to be a variety inferior to that ordered. As a result, the crop which appellant raised for commercial purposes was practically unmarketable and was valueless, whereas if the seed had been true to name, appellant would, as the trial court found, have

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realized a profit of $6,125. The trial court denied recovery of more than the purchase price of the seed, finding that to be the limit of the seller’s warranty. The actual transaction was as follows: Appellant went to the store of respondent Johnston and told him that he wanted to purchase dark green zucchini seed. Respondent replied that he had none on hand at the moment but would attempt to obtain it from the seed houses. Within a few days he told appellant that two seed houses had dark green zucchini seed on hand, that one of the houses was Ferry-Morse, the other Woodruff and Sons. Appellant suggested he buy from Woodruff and Sons. A few days later, when the seed had arrived, respondent called appellant and told him the seed was there. It had been shipped to respondent in a bag which bore the label “dark green zucchini seed.” Appellant came to the store of respondent, and respondent sacked in a paper bag five pounds of the seed which appellant proceeded to plant. He then called respondent again, stated that he needed four or five pounds more to finish his planting, and asked respondent to soak the seed overnight. On the next morning he came and got the seed and proceeded to plant it. There was evidence only an expert, which appellant was not, could have ascertained the error until too late to avoid the loss.

For eight years respondent had maintained in his seed store and in a conspicuous spot therein a sign reading as follows: * ‘ The California Seed and Fertilizer Company gives no warranty, express or implied, as to the productiveness of any seeds, plants, or bulbs we sell, and we will not be in any way responsible for the crop. Our liability in all instances is limited to the purchase price of the seed or materials purchased.” When appellant received the first lot of seeds, respondent made out an invoice tag which appellant then signed. This invoice bore the following printed matter which appellant said he did not read: “We warrant to the extent of the purchase price that seed, bulbs, plants and other materials sold are as described on the container, within recognized tolerances. We give no other or further warranty, express