MANGLESDORF SEED CO. v. BUSBY

MANGLESDORF SEED CO. v. BUSBY
1926 OK 571
247 P. 410
118 Okla. 255
Case Number: 16712
Decided: 06/22/1926
Supreme Court of Oklahoma

MANGLESDORF SEED CO.
v.
BUSBY et al.

Syllabus

¶0 1. Sales--Warranty of Seed--Effect of Pure Seed Law. Chapter 138, S. L. 1919, known as the Pure Seed Law, is a regulatory and penal statute designed primarily to protect the citizens of this state from the propagation and spread of noxious weeds and plants through their intermixture with agricultural and garden seed, and none of its provisions were intended to, or do, create any new rule of civil liability for breach of express or implied warranty in the sale of personalty.
2. Same--Proof of Breach of Warranty. Under sections 11 and 12 of the act, provisions are made for a new method and quantum of proof, cumulative of the common-law rule, in establishing breach of warranty in the sale of seeds, but where such provisions are not availed of to establish such breach, the ordinary and long recognized rules for establishing such liability apply.
3. Same--Breach of Implied Warranty. In an action ex contractu for breach of implied warranty in the sale of seeds, that portion of section 8 of the act making illegal the sale of seeds bearing a false label has no application, because scienter must be alleged and proved under that section.
4. Same--Liability for Sale of Cane Seed for Broom Corn Seed--Erroneous Instructions and Exclusion of Evidence. In an action ex contractu for breach of implied warranty in the sale of seeds, it is prejudicial and reversible error for the trial court to exclude evidence offered by defendant of an express nonwarranty, the seeds being labeled in strict conformity to the Pure Seed Law, and it is also reversible error to instruct the jury in the language of section 12 of the act, when the seeds have not been found to be "faulty or defective" by test and analysis under section 11. For an innocent mistake in the sale of cane seed for broom corn seed, the rule of liability and the method of proof is the same as for the breach of implied warranty of fitness in the sale of any other personalty.

Burford, Miley, Hoffman & Burford, and Barefoot & Carmicheal, for plaintiff in error.
Bond, Melton & Melton, for defendants in error.

LOGSDON, C.

¶1 Defendant's first proposition under its numerous assignments of error presents alleged error of the trial court in the exclusion of certain evidence offered by defendant, and in giving in charge to the jury paragraph No. 4 of the instructions. Defendant Sam Dorchester was a witness for plaintiffs and upon cross-examination identified the invoice covering the particular shipment of seeds here involved. This invoice was then offered in evidence by defendant seed company, when the following occurred:

"Mr. Melton: If the court please, the plaintiff has no objections to the invoice, except that plaintiff objects to the printed part on the bottom of the invoice, which printed part seeks to limit the liability of the Manglesdorf Seed Company, for inferior or defective seed it may sell plaintiff in contravention of law. Court: It may be admitted with the exception of that part. Mr. Burford: The whole instrument better go in and receive it for what it is worth. It should go in for what it is worth. Court: It may be admitted with the exception of the printed part at the bottom."

¶2 That portion of the invoice excluded by the court reads:

"All seeds are selected with the greatest care, but we give no warranty, either expressed or implied, nor will we be responsible for the crop. No claims will be considered unless made immediately upon receipt of goods."

¶3 In plaintiffs' petition they alleged a breach of implied warranty in the sale of said seeds thus:

"* * * and by reason of the failure of the implied warranty by the defendants in the sale of said seed these plaintiffs have been damaged in the said sum of $ 423.50."

¶4 Plaintiffs again alleged in the fifth paragraph of their petition:

"Plaintiff herein further alleges and shows to the court that the said seed so sold this plaintiff herein were sold as agricultural seed within the meanings of the laws of the state of Oklahoma, and by the making of said sale the sellers thereof warranted said seed to be black Spanish broom corn seed."

¶5 Under these express allegations of implied warranty it seems clearly evident that the trial court erred as a matter of law in excluding the offered evidence of express nonwarranty, unless, as contended by plaintiffs, the express nonwarranty clause violates some express statute of this state. It is sought to sustain this action of the trial court and its instruction No. 4 to the jury, by reason of the language of Comp. Stat. 1921, sec. 3793. This section was enacted as section 12 of chapter 138 of the Session Laws of 1919, known as the Pure Seed Law. The title of that act reads:

"An act regulating the sale of agricultural, garden and truck seed; defining agricultural seed; providing for label requirements, standard of purity; defining noxious weeds, enforcing officer; inspecting, sampling and testing seed; violations defined, other violations defined; provisions for free tests and the law providing for the expense of this act; making a violation of any of the provisions of this act a misdemeanor, and prescribing a penalty."

¶6 This language clearly shows that the act was intended to be regulatory and penal, and that it did not purport to establish any new rule of civil liability for the breach of express or implied warranties in the sale of seeds. None of the provisions of the act are more comprehensive than the title. The first section names the agricultural seeds which are to be included within its provisions, "which are sold, offered or exposed for sale within this state for seeding purposes within this state." Section 2 requires a label written or printed in English, and states what the label shall show. Section 3 contains similar requirements and directions as to mixed seeds for agricultural planting, while section 4 extends these provisions to garden and truck seeds. Enforcement of these regulatory provisions is entrusted to the Board of Agriculture by sections 6 and 7, and the duties of the board and its officers are therein defined. Section 8 defines an illegal sale of seeds thus:

"It shall be unlawful for any person, firm or corporation to sell, offer, or expose for sale within this state, any agricultural seed or agricultural seeds, mixtures of agricultural seed or seeds, garden or truck seeds, as defined in this act, for seeding purposes within this state without complying with the requirements of this act, or to falsely mark or label any agricultural seed or seeds, garden or truck seeds, or to interfere in any way with the inspectors or assistants in the discharge of the duties herein named."

¶7 Section 9 fixes the penalty for illegal sales and provides the procedure for prosecution and recovery thereof. Section 10 authorizes the seizure of unlabeled seeds, while section 11 grants a privilege to any citizen of the state to have seed samples analyzed and tested under rules of the board. Section 12 has no relation to the regulatory and penal provisions of the act, but is a complement to section 11, and provides a remedy for the citizen whose seed test and analysis shows the seeds, legally sold to him under the regulatory provisions, to be in fact "faulty or defective." Section 12 reads:

"All persons selling seed for agricultural planting purposes which are faulty or defective, shall be liable in damages in such sum as the purchaser may sustain."