Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co.

Opinion

MARTIN, Acting P. J.

Plaintiff sod grower and defendant seed company both appeal from a judgment in a breach of warranty/product liability action arising from the sale of contaminated ryegrass seed.

Facts

In 1981, plaintiff, Nunes Turfgrass, Inc., was a California corporation based in Modesto with sales outlets in seven other California cities. Plaintiff

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had engaged in business since June 1962 and in 1981 represented itself as the largest independent sod grower in California. Defendant Vaughan-Jacklin Seed Company, Inc., was a corporate grower, developer, and commercial retailer of grass seed based in Post Falls, Idaho. At the time of trial, defendant had been engaged in business for 50 years and was one of the largest seed companies in the world. Plaintiff and defendant conducted business with one another beginning in the early or mid-1960’s and continuing until at least 1981. Defendant sold plaintiff seed for its sod fields and for a line of seed mixes sold under the Nunes name to landscapers, golf courses, and the general public.

Prior to 1980, plaintiff produced sods consisting of bluegrass, bluegrass blend, and bermuda. In 1980, plaintiff’s president, John Nunes, Jr., perceived customer demand for a hardier, more drought-resistant bluegrass-perennial ryegrass blend. Nunes contacted Doyle Jacklin, defendant’s sales/marketing manager, explained the need, and asked him to recommend a variety of perennial ryegrass suitable for overseeding fields previously planted with bluegrass. Jacklin researched the request and recommended a new variety, Jackpot perennial ryegrass. John Nunes relied on the recommendation based on his longstanding working relationship with Doyle Jacklin and defendant.

In August or September 1981, plaintiff’s employee, Greg Nunes, ordered 8,000 pounds of the new Jackpot variety from defendant’s employee, Grant Jorgensen. In September and October, defendant delivered Jackpot seed from three different lots to plaintiff. Plaintiff then overseeded 56 acres of bluegrass sod with the Jackpot seed. Several weeks after the overseeding, plaintiff’s employees noticed large, irregular clumps of off-colored ryegrass appearing in the fields. Plaintiff contacted defendant and forwarded a sample of the contaminant plants. Defendant determined the fields were infested with an annual ryegrass which rendered them unsuitable for sod production. Defendant also recommended extensive corrective actions to eliminate as much of the contaminant grass as possible. Defendant’s director of research, Dr. Leah Brilman, visited the fields and then reported to defendant’s president, Duane Jacklin. In a report transmitted to plaintiff, Dr. Brilman stated: “The appearance of the annual rye grass in an unmowed condition would be noticeable to the average consumer.” The off-colored ryegrass clumps appeared in an incidence “of approximately one plant per square foot.”