I am unable to agree with the conclusions reached in the prevailing opinion. The evidence in this case as I read the record does not justify the so-called finding that it is impossible to ascertain from the evidence what the value of the crop would have been had the seed sold to and planted by the plaintiff been Utah Chinese celery seed. The plaintiff offered evidence tending to show that about 36,000 plants *Page 23 of celeriac were grown upon the two acres of land which were planted by the plaintiff, and that an equal number of Utah Chinese celery plants would have been grown had the seed which plaintiff purchased been true to name. The evidence also shows that the market value of Utah Chinese celery during the fall of 1928 was from 75 cents to $1 per dozen bunches. There is also evidence that one person can dig and market 75 dozen bunches of celery in a day and that the reasonable wages for such work is $3 per day. There is evidence that on the 13th of November, 1928, and for a few days thereafter, a severe frost occurred in Utah county and elsewhere in the state. Plaintiff offered evidence tending to show that the frost caused but little damage to celery which was being grown in the vicinity of the Hoover farm. The defendant offered evidence which tended to show that the frost practically destroyed the entire celery crop. There was thus upon that issue a direct conflict in the evidence, and the court was called upon to determine the fact and was in error in evading the issue by finding that "it is impossible to determine what, if any, profit would have been realized from the crop had the seed been celery seed." Neither the fact that there was a direct conflict in the evidence as to whether the plaintiff was or was not damaged, nor the fact that the amount of damages which plaintiff probably sustained by reason of the fact that the seed was celeriac instead of celery may not be ascertained with mathematical accuracy, justify a failure to find definitely upon that issue. If the plaintiff failed to establish that she sustained any damage by reason of the seed not being true to name, the court should have so found. If, on the other hand, the evidence offered by the plaintiff was believed by the trial court, there is ample evidence that the plaintiff was damaged by reason of the seed not being true to name, and such evidence is sufficiently definite to justify the fixing of the amount of damage sustained by the plaintiff. Moreover, even though it were impossible to ascertain the amount of damages which the plaintiff sustained by reason of the seed not being true to name, none the less she was *Page 24 entitled to a judgment for nominal damages if the defendant warranted the seed to be Utah Chinese celery seed.
The prevailing opinion proceeds upon the theory that the trial court found that the defendant did not warrant the seed which was purchased by the plaintiff to be Utah Chinese celery seed and that such finding is supported by the evidence. The trial court did not find that the defendant did not warrant the seed purchased by the plaintiff to be Utah Chinese celery seed. If there is any finding upon that important issue, it is to the effect that the defendant expressly warranted the seed to be true to name. The fourth finding reads as follows:
"That the plaintiff took said seed to her farm in Vineyard, Utah County, State of Utah, wholly relying upon the representations of the defendant that said seed was Utah Chinese Celery seed. Said seed was not Utah Chinese Celery seed, but was Celeriac seed."
The trial court also found that at the time of the
"sale it was, and for a long time, had been the common and universal usage and custom of all persons engaged in the seed vending business at Salt Lake City, Utah, that the vendor of seeds does not by reason of such sale give or make any warranty, express or implied, as to the description, quality, productiveness, or any other matter, in respect to the seeds they sell, and the defendant sold said seeds pursuant to said general usage and custom."
The law is well settled that evidence of a usage or custom is not admissible to vary or contradict the express terms of a plain unambiguous contract. 17 C.J. 495, and cases there cited in the footnote. The authorities are also generally agreed that a usage or custom which is repugnant to the express provisions of a statute has no legal effect. 17 C.J. 475, and cases there cited. Our Uniform Sales Act, Comp. Laws Utah 1917, title 98, c. 1, provides:
Section 5121. "Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be considered as a warranty." *Page 25
Section 5123. "Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description."
Section 5124, subd. 1. "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."
Thus, if the fact be as apparently found by the trial court that the defendant represented the seed in question to be Utah Chinese celery seed and the plaintiff relied upon such representation, then and in such case the defendant is not relieved from responding in damages because of any usage or custom that might have existed among persons engaged in selling seed.
The court also found upon conflicting evidence that the seed purchased by the plaintiff was delivered in a paper sack upon which were printed these words:
"Utah Nursery Company uses all possible care and precaution to send out only seeds that are pure and reliable but gives no warranty, express or implied, as to the description, quality or productiveness or any other matter of any seeds they sell. If the purchaser does not accept them on these terms, they must return them at once and any money paid by them will be refunded."
The fact that the seed was delivered in a paper sack upon which was printed the matter just quoted is not necessarily of controlling importance. If the fact be as apparently found by the trial court, that the defendant represented to the plaintiff that the seed was Utah Chinese celery seed, and the defendant relied upon such representations, then and in such case the printed matter would not change the legal effect of defendant's representations. One of the principal issues raised by the pleadings and evidence in this case is whether there was or was not an expressed or implied *Page 26 warranty that the seed purchased by the plaintiff was Utah Chinese celery seed. In determining that issue, evidence of the usage and custom of persons engaged in the selling of seeds, of plaintiff's knowledge or ignorance of such usage or custom, of the printed matter, if any, which was upon the paper sack in which the seeds were delivered, together with the other facts and circumstances surrounding the transaction, were proper subjects of inquiry, but the ultimate fact which the court was called upon to determine was whether the seed in question was, or was not, warranted to be Utah Chinese celery seed. As I read the findings, that issue was determined in favor of the plaintiff by finding No. 4 which is heretofore quoted. The defendant makes no complaint of that finding, and, so long as such finding is permitted to stand, the plaintiff is entitled to at least nominal damages. In my opinion the judgment is not supported by the findings, and therefore the trial court was in error in entering judgment in favor of the defendant. The judgment should be reversed, and the cause remanded to the district court of Salt Lake county, with directions to grant a new trial.
CHERRY, C.J., being disqualified, did not participate herein.