(concurring in part, dissenting in part).
I concur with the majority opinion as it relates to the disposition of Issues II, III, and IV. I also concur with the majority opinion’s statement of the applicable law set forth in Issue I.
It must be emphasized that this case differs from the usual breach of warranty action because it does not involve manufactured goods, as was the case in Durham v. Ciba-Geigy Corp., 315 N.W.2d 696 (S.D.1982) and Swenson v. Chevron Chemical Co., 89 S.D. 497, 234 N.W.2d 38 (1975). Rather, appellant is a distributor of a product of nature, namely seeds. Its function is to process, grade, color, test, advertise, and sell the product. I would concur that the public policy considerations articulated in Durham would generally require that a distributor of seeds be held to the same general warranty obligations as a manufacturer, with some modifications.
Even accepting the law that in a breach of warranty case no specific defect need be shown if direct or circumstantial evidence permits an inference that some defect was present, one seeking a recovery of damages for breach of warranty still has an obligation to establish that a defect existed “at a time when the defendant had possession, control or responsibility for the condition of the product.” Drier v. Perfection, Inc., 259 N.W.2d 496, 504 (S.D.1977).
Here, the evidence is, in my opinion, totally devoid of any showing that the seed was defective. The majority opinion failed to mention that timing in the planting of seed corn is crucial and that the fact that the fields were planted at approximately \he same time is not particularly signifi*37cant; that many other farmers who planted fields using seed from the exact same lot as that in question here experienced no similar problems; that appellee applied a herbicide to field #2, but not to other fields where he had success; and that although 40% to 60% of the stalks in this field did not produce good ears, conversely, 40% to 60% of the stalks did produce good ears of corn.
An agronomist who had inspected field # 2 testified that he checked approximately seventy rows and observed normally developed ears in the low ground where the lane goes to the center of the irrigation system. That fact goes a long way in disputing appellee’s allegations that the seed itself was defective. Perhaps appellee meant to argue that he planted the defective seed only on the high ground of the field, and that the good seed was planted on low ground. That proposition defies all logic.
The fact that the seed produced good ears on the low ground is proof that the seed itself was not defective. It is also strong evidence, along with other evidence in the case, that the corn plants suffered heat stress during the critical pollination period and that the lack of moisture at that critical time caused the lower than average yield.
Appellee merely introduced evidence to establish that field # 2 experienced a lower than average yield and that the low yield caused him economic damage. In Bickett v. W.R. Grace & Co., 12 U.C.C.Rep.Serv. 629, 646 (W.D.Ky.1972), the court wrote, in a case with facts not unlike those here, that
[p]laintiffs have only shown poor results without any specific proof as to how the seed was defective or how the defect caused the result that they claim....
Briner v. General Motors Cory., Ky., 461 SW2d 99 (1971) holds that mere proof of poor results requires the jury first to infer a defect and then infer that the defect caused the injury, and that the plaintiff may not prove his case by basing an inference upon an inference.
Here, appellee presented evidence from which one could infer that a defect must have existed in the seed because other factors needed to grow corn seemed satisfactory. Using the inference that the seed must have been defective, appellee then went on to infer that the defective seed caused him economic damage. Allowing a plaintiff to recover upon such a chain of inferences is unacceptable and forces the jury to indulge in guesswork, speculation, and conjecture.
Additionally, because of the rulings of the trial court, the burden of proof was shifted to appellant to establish that the low yield did not, in and of itself, mean that the seed was defective. Appellant was forced to introduce evidence regarding all of the variables that are affected when dealing with a product of nature such as corn seed. Because appellee did not introduce evidence of a defect in the seed, appellant had nothing to specifically refute, but everything to disprove. In Herman v. General Irrigation Co., 247 N.W.2d 472, 476 (N.D.1976), the North Dakota Supreme Court held that “if liability could be imposed under [a] warranty theory without a showing that the- product was defective, the supplier of the warranty would in reality become an absolute guarantor of his product. The law has not gone so far.” The majority opinion in this case, has done exactly what North Dakota held improper; that is, it made appellee an absolute guarantor of its seed. I strenuously disagree with such a holding.
Another factor which must weigh heavily in the determination here relates to an evi-dentiary matter which although not presented to the jury, is part of the record considered by the trial court. Appellee had obtained an expert witness to review all of the facts in the case. In the pre-trial deposition of that expert, he could not express an opinion as to whether a defect in the seed caused the problems in field #2. During that deposition, the expert was asked: “Again, as to the particular problem Mr. Hanson had[,] you wouldn’t know the cause of that and you’re not offering any opinion, is that correct?” The expert *38replied, “It’s difficult to speculate.” While it was difficult for appellee’s expert to speculate as to the cause of the problems in field # 2, the jury was allowed to and obviously did not have any difficulty in speculating as to the cause, especially considering the total absence of any evidence showing a defect in the seed.
The deposition of the expert was not presented to the jury. However, at trial, by stipulation of the parties, the deposition was made part of the record. Considering the nature of the total contents of the deposition, it is not difficult to ascertain why appellee did not present it to the jury, even though he later claimed that he merely forgot. When offered the chance to reopen his case to include the deposition, he declined.
For all of the reasons stated above, I would reverse.
I am authorized to state that Justice WOLLMAN joins in this concurrence in part, dissent in part.