Chormicle v. Southwest Warehouse Co.

HENSHAW, J.

This action was brought by plaintiff, claiming in his own right and as the assignee of two others, against the defendant corporation for damages for breach of warranty which plaintiff claims defendant made to the effect that certain seed barley purchased by plaintiff and his assignors from defendant was

bearded

barley, when in fact it was beardless barley. It is alleged that plaintiff planted the seed but had no crop and that the sole reason for the failure of the crop was that the seed was of the beardless .variety instead of the bearded variety, which latter would have yielded good returns. Defendant for answer admitted the sale of the barley but denied the warranty. The only evidence of warranty was the testimony of plaintiff and his son that Harry Spencer, defendant’s warehouse foreman, in a conversation represented and stated to plaintiff that the seed barley was bearded barley; that this conversation took place on December 7, 1906, at defendant’s warehouse at Irvine at the time when the grain was bought and paid for. The case was tried before a jury which rendered a general verdict in favor of plaintiff for two thousand dollars. It also returned certain special verdicts and findings of fact. By reason of the irreconcilable conflict and inconsistency between these special verdicts and findings and the general verdict the judgment must be reversed.

The evidence of Chormieles, father and son, was to the effect that they with Elmer Porter rented the land which was to be sowed to barley; that on December 7, 1906, they bought fifteen tons of barley for which a check was given to Mr. Spencer

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whom they identified in the courtroom. The receipt for their payment was made out by J. C. Jenkins who was present at the time, but their conversation was with the foreman, Spencer, who made warranty as to the kind and quality of the seed grain. Elmer Porter, who accompanied the Chormicles, testified that he took no part in the conversation but saw the plaintiff talking with Jenkins and probably with some other person, upon December 7th, the day when the sale was made, the check in payment dated, and the receipt signed by Jenkins given. Spencer and Jenkins testified that Spencer was not at the warehouse upon that day and in answer to special interrogatories the jury found that Spencer was absent from defendant’s warehouse and in the city of Santa Ana on December 7, 1906, “when plaintiff and his associates were at said warehouse and purchased said seed barley”; that Jenkins did not make the sale of the seed barley but took the check and gave the receipt for the same; that the sale of the barley was made by Spencer; that Jenkins did not warrant that the seed barley was bearded barley.