Couts v. Sperry Flour Co.

TYLER, P. J.

Action for damages for breach of warranty. The allegations of the complaint, in so far as they are necessary for a discussion of the question here involved, recite in substance that on or about the fourteenth day of December, 1922, plaintiffs called upon defendant company with the object of purchasing from it certain seed barley to be used for planting, and defendant thereupon sold the same to them. That prior to such sale defendant represented and warranted that the seed so purchased was a lot of fine San Joaquin grown barley that yielded twenty-five or thirty sacks to the acre, and further represented that it was not Mariout barley, a variety plaintiffs did not desire to purchase. That plaintiffs relied solely upon each of the representations so made in completing the purchase. That acting upon such reliance they planted the same, which in due course grew and matured, at which time it was revealed that the same was Mariout barley. That in consequence plaintiffs’ yield was a smaller one than would have been produced with the variety ordered. Damages were prayed for in the sum of $3,150.50. Defendant answering, denied that the barley was sold as seed barley or- that any representations or warranties of any kind were made by it with reference to its character or kind. At the trial plaintiff Gouts testified, in substance, that he visited defendant’s place of business in Los Angeles for the purpose of purchasing wheat and barley for seed purposes. That with reference to the barley he informed defendant’s agent that he could not obtain good seed in the vicinity in which he lived as his neighbors had been using the Mariout variety which had proved disastrous, and that he wanted some oí the Coast barley, whereupon the agent of defendant assured him the company had “some splendid Coast barley, grown in the San .Joaquin, that goes twenty-five to thirty sacks to the acre,”

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that he thereupon informed the agent that it was the variety he wished to purchase. He further testified that he explained that his reason for calling on defendant was that he did not want Mariout barley such as had been sown in his neighborhood, whereupon the agent of defendant replied that his company had no Mariout barley, but had the San Joaquin variety. That upon receiving this information he purchased two tons of the represented variety. On the other hand, the agent of defendant, through whom the sale was made, testified that he had informed plaintiff at the outset that his company was not a seed house and would not quote any grain as seed, but would quote a good quality as recleaned grain, and that in his opinion it would be suitable for planting. The price quoted was $1.90 per cwt., at Los Angeles, plus carload freight to Vista, where plaintiff desired it to be shipped. Plaintiff then informed him that he did - not want a carload, but only a couple of tons, whereupon he had replied that he ought to obtain it locally. Plaintiff then explained that the local barley was foul with smut and that he did not want it; that he wanted the northern barley. The agent thereupon stated that he was selling him barley that came from the north, meaning north of Los Angeles, but that nothing was ever said by either party about Mariout barley. It also appeared in evidence that defendant did not buy its barley with any reference as to variety, but that all the barley defendant had in its warehouse was_ placed in separate bins according to quality but without regard to variety. It further appeared that the price of the barley kept by defendant at that time was sold at $1.90 per cwt., f. o. b. Los Angeles, and this was the regular and only price which defendant charged. It was proved that the price charged for barley seed by regular seed houses during the same period was $3.50 per cwt., and that the same was sold without any warranty. Other evidence was to the effect that defendant’s salesmen were not permitted in selling seed grain to make any warranties, express or implied, as to quality or description, but that the same was simply sold as recleaned grain, and inventoried by the company as such. Upon this evidence the court found that at the time the sale of the barley by defendant to plaintiff was made plaintiff especially informed defendant that he did not want Mariout barley. It further found that at this time