(concurring specially).
I agree that Midwest Commodities, Inc., breached its contract (Conclusion of Law # 1) when it refused to accept the return of the seed and to reimburse appellee for the unsold seed. Midwest Commodities, Inc., through its agents and employees, represented to appellee that any unsold seed could be returned to it and this promise was *645part of the contract entered into on November 10, 1978, when appellee purchased his first 55 bags of seed. Finding of Fact # 10 pertains to this promise, and was supported by the evidence and not clearly erroneous.
To establish a breach of warranty or intentional or negligent misrepresentation, the evidence must show that the seed was represented as being certified or that it was defective in quality.
There was no “scam,” fraud, cheat, deceit, false misrepresentation (intentional or negligent), or breach of warranty (express or implied) with regard to the seed in question as:
(1) South Dakota State University, Brookings, South Dakota, tested the seed on August 20, 1979, and submitted a report (exhibit 22) indicating 99.79% pure seed; 0.21% inert matter; 0.00% weed seed; and 92% germination. These figures were within established quality levels recognized in the seed business. Hence, the trial court’s Finding of Fact # 8 stating that “for all practical matters, [the seed] was worthless” is clearly erroneous.
(2) A representative of the South Dakota Department of Agriculture took seed samples at appellee’s farm on June 29, 1979. The State Department of Agriculture indicated through exhibit 22 that, according to the information on the seed label, the seed was 99.96% pure seed; 0.04% inert matter; 0.00% weed seed; and 94% germination. Again, these figures were within established quality levels. Finding of Fact # 7 by the trial court, stating that the seed “is practically worthless,” is contrary to the results of this test and is also clearly erroneous.
(3) Appellee himself satisfactorily planted and harvested a crop from the seed in question. There is no evidence that the allegedly worthless seed contributed to or caused any damage to appellee. It is to be noted that appellee had participated in both farming and the commercial seed business since he was a boy. This is not a case where the city slicker took advantage of an innocent farmer.
(4)The alleged certification of the seed is not begot by the facts:
(a) Appellee did not advertise that he had certified seed for sale;
(b) Midwest Commodities did not furnish seed sacks with attached blue tags, which denote certified seed;
(c) There is no testimony by appellee or anyone else that the seed was orally represented as being certified; and
(d) There was no written document (to include the Directory in evidence) reflecting that the seed sold was certified.
Thus, the cause of actions sounding in false misrepresentations and breach of warranty fall since the trial court’s findings of fact and conclusions of law are clearly erroneous under the state of the record herein.