The writ of error brings for review judgment in favor of plaintiff in a suit wherein damages were alleged to have occurred by reason of the failure of an implied warranty that certain seed purchased by the plaintiff from defendants were "Texas Seeded Ribbon Cane Seed" when in truth and in fact the seed were a mixture of "Texas Seeded Ribbon Cane Seed" and "Kaffir Corn seed," consisting of about 40% Texas Seed Ribbon Cane seed and the remainder Kaffir Corn Seed and that by breach of such warranty "the plaintiffs suffered great and divers losses in that the said Kaffir corn did not produce the volume and tonnage that would have been produced by Texas Seed Ribbon Cane; that said Kaffir corn is of such nature and character as to be wholly unfit for ensilage purposes i na wet climate, such as usually prevails in the growing season in Hernando County, Florida, and ensilage purposes in a wet climate, such as usually prevails and said Kaffir corn do not reach the proper stage for ensilage at the same time, and being mixed together one or the other of necessity had to be harvested either too late or too early — Wherefore, the plaintiffs say that by reason of the premises they are injured and have sustained damages to the amount of $10,000.00; wherefore, plaintiffs bring this suit and claim damages in the sum of $l0,000.00." *Page 369
The second count of the declaration is like the first except that it further alleges that "on or about March 1, 1935, the said O.C. Dick, authorized agent as aforesaid, did sell and deliver to the plaintiffs a large sack of seed and warranted by him and his principal, the said West Coast Lumber Company, a corporation, to be Texas Seed Ribbon Cane seed, and the plaintiffs being unable to verify the warranty at the time of purchase by any reasonable inspection of said seeds, did then and there accept the said sack of seed upon the warranty of said defendants, and thereafter, to-wit, in the month of March, 1935, did plant said seed for the purpose of producing ensilage; yet said seed contained more than sixty per cent Kaffir Corn seed, and only forty per cent Texas Seed Ribbon Cane seed, thereby causing great and divers losses to the plaintiff in that said Kaffir corn seed caused a shortage in crop of a great many tons of ensilage, to-wit 266 tons, and further loss by molding and spoilage, to-wit 400 tons, all of which losses were directly caused by said defendant's failure to deliver Texas Seed Ribbon Cane seed in accordance with their verbal agreement so to do.
Wherefore, the plaintiffs say that by reason of the premises they are injured and sustain damages to the amount of $10,000.00."
Numerous pleas were filed, some of which, on motion, were stricken.
It is not necessary to discuss or delineate the contents of the pleas which were stricken or of the pleas which remained in the record. It is sufficient to say that the pleas standing, upon which trial was had, were sufficient to raise the general issue.
The plaintiffs proved that they purchased the seed from the defendants as alleged in the declaration; that they planted the seed and when the harvest came on it was discovered *Page 370 that a large percentage of the crop was Kaffir corn; that the crop produced was about 400 tons of ensilage of which about 100 tons was Kaffir corn and the remainder was Texas Seeded Ribbon Cane but that a large quantity of that was damaged as ensilage by reason of having mixed with it the Kaffir corn.
There were several questions presented but it is not necessary for us to discuss them because the record shows that the plaintiffs, by their own conduct, are estopped from alleging damage by reason of any alleged breach of warranty in regard to the seed.
The uncontradicted evidence shows that during the year prior to the year in which the Texas Seeded Ribbon cane seed were planted on the land which had been planted to and had produced a crop of Kaffir corn; that the Kaffir corn had been harvested and used to feed cattle; that the droppings from the cattle so fed were collected to be used for fertilizer and that the field, or major part of it, which was planted to Texas Seeded Ribbon cane was fertilized with this manure; that the manure had in it great quantities of fertile Kaffir corn seed and that where the manure was spread thickest on the land the crop showed the largest proportions of Kaffir corn.
There is no evidence in the record that the seed sold by the defendants to the plaintiffs contained any Kaffir Corn seed except what is shown by the result of the planting and the crop grown on the land. That the manure used on the crop was, as heretofore stated, infested with large quantities of fertile Kaffir corn seed is not disputed but is affirmatively shown.
The record further shows that other seeds sold by the defendants to other parties, received at the same time from the same source, did not contain any Kaffir corn seed.
It is too well settled to be questioned that "on a sale of *Page 371 seeds there is an implied warranty that the seed are fit to sow and will germinate. If the sale is by the producer there is an implied warranty that the seed are free from latent defects arising from the mode of cultivation and reasonably free from foreign matter. But if a particular kind of seed is purchased by name, the warranty implied is only that the seed is of the kind designated and there is no warranty that the seed will germinate or is fit for the intended purpose." 35 Cyc. 409. See Grafton-Stamps Drug Co. v. Williams, 103 Miss. 296, 62 So. 273; Vaughn Seed Store v. Stringfellow, 56 Fla. 708, 48 So. 410.
So the theory of the case was tenable but when the evidence shows without contradiction that the plaintiffs planted the seed using as fertilizer on the ground cow manure which was so infested with Kaffir corn seed as to produce large quantities of Kaffir corn, the evidence that Kaffir corn came up along with the product of the seed purchased constitutes no evidence whatever that the seed purchased were a mixture of Texas Seeded Ribbon Cane seed and Kaffir corn seed.
The witness who planted the crop testified that this type of fertilizer was used on the field and he also testified that on a pile of manure like that which he used to fertilize the field Kaffir corn came up "as thick as hair on a dog's back."
A purchaser who would hold the seller liable on an implied warranty of type of seed sold can not mix with such seed other seeds of a kindred plant and then be heard to complain that the entire crop was not of the type which should have been produced by the seed so purchased.
It is immaterial that the Kaffir corn seed were placed in the ground with the fertilizer and not deliberately planted with the Texas Seeded Ribbon Cane seed. Neither is it *Page 372 material whether or not the planter-purchaser of the seed knew that the fertilizer was infected with Kaffir corn seed at the time he planted the crop.
In other words, to hold the seller liable, the purchaser must protect him by a proper planting of the seed. In this connection see: 55 C.J., Sales, Sec. 742, p. 778:
"In accordance with the rules as to implied warranties of quality and fitness generally on a sale of seeds there is an implied warranty that the seeds are fit to sow and will germinateif properly planted * * *" (Emphasis supplied.)
24 R.C.L., Sales, Sec. 470, p. 199:
"The better view, however, seems to be that in the sale of seed necessarily intended for planting and which is totally unfit for seed is not fertile, a warranty will ordinarily be implied that it is fit for such purpose, that is, that it is reasonable fertile seed and will germinate if properly planted.* * *" (Emphasis supplied.)
Western Soil Bacteria Co. v. O'Brien Bros., 49 Cal. A. 707,194 P. 72, was an action brought to recover a balance alleged to be due on the purchase price of certain vetch seed. The defense was that the seed had failed to grow as warranted and was worthless. The Court said:
"The appellant, however, contends that, even if such express warranty was given and made, and even though it formed the chief inducement to defendants for their said purchase, it is not such a warranty as would be enforceable, for the reason that there are other elements which enter into the problem as to whether seed, however reinforced as to its germinating qualities, and however carefully and correctly planted, will germinate and grow to its expected maturity, such as conditions of soil and location, and also the particular climatic conditions of the season of the planting and growth of said seed, which matters, according to the plaintiff's contention, would always be *Page 373 beyond the control of the vendor of the seed. The difficulty with this contention consists in the fact that, in so far as the matters of soil and location are concerned, the plaintiff knew at the time said warranty was given in just what soil and location said seed was to be planted. It was purchased by defendants for planting in growth as a cover crop within their said orchard, which facts were fully known to plaintiff at the time of said sale. With respect to the seasonal conditions, it is true that this would be beyond the control of the plaintiff; and that if it could be shown that the seasonal conditions of the particular place where and time during which said seed was to be planted and was expected to grow were abnormal and that whatever failure there was in said seed to germinate and grow was attributable to such abnormal conditions, this would be a good defense to the enforcement of such guaranty."
In Depew v. Peck Hardware Co., 121 App. Div. 28, 105 N.Y.S. 390 (aff. 197 N.Y. 528, 90 N.E. 1158) plaintiff purchased alfalfa seed from defendant and planted same. When the crop came up there was a large quantity of trefoil among the alfalfa. In an action to recover damages resulting from the defective seed, defendant proved that there was trefoil along the roadside and claimed that this was the cause of the presence of the trefoil in plaintiff's field. The Court intimated that if this contention had been sufficiently established by the evidence, it would have been a bar to the action.
For the reasons stated, I think the judgment should be reversed. *Page 374