Klein v. Asgrow Seed Co.

PIERCE, P. J.

Plaintiffs and respondents, Bud Klein, Louis Mersaroli and Reginald Mersaroli, joint venturers engaged in tomato growing, recovered damages in the sum of $14,439.32 against Associated Farm Supplies, a corporation, for breach of warranty in the sale of tomato seed in 1962. Associated, the immediate supplier, on its cross-complaint recovered judgment against its supplier of the seed, Ranch

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Supply, Inc., which in turn recovered judgment against its seller, Reed Lockhart, a seed broker. The latter recovered from the Asgrow Seed Company, manufacturer of the seed. All judgments were for the same amount; all judgments (in the chain of succession of sales and purchases) were on the theory of breach of both express and implied warranty by each seller to each buyer. Plaintiffs’ complaint had been against all parties, and all intermediate sellers cross-complained against Asgrow (except Associated—whose rights and liabilities with respect to Asgrow, and therefore its right to recover from and against Asgrow, were however covered in, and became an issue through, the trial court’s pretrial order). Because of nonprivity the trial court denied recovery to plaintiffs and to all cross-complainants (except Lockhart) directly against Asgrow. Asgrow has appealed from the judgment in favor of Lockhart; all defendant-cross-complainants have also appealed (urging principally the judgment against Asgrow should be direct and primary—with their liability secondary); plaintiffs have not appealed.

To synopsize our conclusions: We hold that the trial court correctly awarded successive judgments under the facts found because of the breach by each seed supplier (including Asgrow) of successive warranties, both express and implied, but we conclude that the trial court incorrectly held that nonprivity relieved Asgrow of direct liability. We hold its liability, regardless of absence of privity, was direct and primary. The reason: Misrepresentation of the seed sold was deliberate; there was an express warranty; there was no agreement or custom negating that warranty by disclaimer or limitation of liability at the time of the sale; had there been one it would have been against public policy; each buyer relied upon the warranty in each of the sales.

The tomato seed was sold by description. It was described as being VF-36. That variety is an early maturing, heavy producing cannery tomato. Those facts, at the time of all sales, were known by all the parties and generally throughout the trade (seed producer-growers, brokers, merchants and tomato growers). By “early maturity,” in the case of VF-36 tomatoes grown in 1962 at the location and under the conditions obtaining on plaintiffs’ lands, is meant that seed if planted late in March would produce tomatoes which could be expected to be ready for harvest around the last two weeks in August.