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warranty, sale, rep, am, purchaser, seller, crop, st, true and value

SEED. Generally the sale of seed as and for a certain kind—that is, a sale by description—constitutes a warranty of the seed. A sale of seed as rape seed constitutes a warranty that the seed is true to name, where the purchaser is ignorant of the ap pearance of rape seed, and hence an inspec tion of it by him would not aid him to de termine the true character of the seed; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am. St. Rep. 916. The sale of tur nip seed as "skirvings seed" constituted a warranty that the seed is of that kind; 18 Q. B. 560 ; also a sale of turnip seed as and for "early strap-leaf red-top turnip seed"; Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425. A sale of seed for seed purposes as and for "Arlington white spine cucumber seed" constitutes a warranty that the seed will produce that kind of cucumbers; Vaughan's Seed Store v. Stringfellow, 56 Fla. 708. Selling seed for sowing or planting as being a particular kind of seed constitutes a warranty that it is true to name, which is breached by delivering seed of a different kind, utterly unproductive; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136. In a few jurisdictions the theory of a warranty being created on a sale of seeds is denied. In Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 7 L. R. A. 471, 18 Am. St. Rep. 731, the court held that a statement made by a seller that certain wheat was "spring wheat" was not a warranty. The court relied on Shisler v. Baxter, 109 Pa. 443, 58 Am. Rep. 738 ; but the law of Pennsylvania is peculiar, for it requires, in order to constitute a warranty, that a warranter intends to contract or agree to be bound, and it is not enough that he intends to affirm.

By the Sales Act : "Any affirmation of. fact or any promise by the seller relating to the goods is an express warranty if the nat ural 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 construed as a warranty." The sale of seed with the intent upon the part of both buyer and seller that it is to be used in planting or sowing raises an implied warranty of fitness for that purpose; that is, that it is clean seed, possessing no defects in germinating power ; Moore v. Roger, 113 Mo. App. 423, 87 S. W. 602; as to rice; Rei ger v. Worth, 130 N. C. 268, 41 S. E. 377, 89 Am. St. Rep. 865; as to peas; Landreth v. Wyckoff, 67 App. Div. 145, 73 N. Y. Supp. 388; as to onions ; Ferris v. Comstock, 33 Conn. 513. A sale of seed for seed purposes by the grower thereof raises an implied warranty that it is free from noxious weed seed'; Bell v. Mills, 78 App. Div. 42, 80 N. Y. Supp. 34; and that there is no impurity in the seed from cross fertilization; Landreth v. Wyckoff, supra.

There is a split of authority as to the effect of a notice accompanying seed sold for planting or sowing, containing a clause in effect that the seller does not warrant the seed in any respect, and that if the pur chaser is not willing to take it without war ranty he must return it. In some jurisdic

tions a distinction is made between a war ranty and a condition, and it is held that a sale by description constitutes a condition rather than a warranty, and hence that such a clause does not cover the rights of the parties claiming a violation of the con dition ; [1911] A. C. 394. In other jurisdic tions, the clause is held binding upon the pur chaser, if it comes to his notice, but is not unless it does; Bell v. Mills, 78 App. Div. 42, 80 N. Y. Supp. 34; Blizzard Bros. v. Growers' Canning Co., 152 Ia. 257, 132 N. W. 66.

The purchaser is not entitled to rely en tirely upon representations as to the kind or quality of seed, but he should make an in spection of it before using and if he fails to do so the question of his negligence in that regard is a question for the jury ; Fox v. Everson, 27 Hun (N. Y.) 355.

The purchaser upon discovering a breach of warranty may rescind the sale whhin a reasonable time and return the property, or he may retain it and avail himself of the damages he has suffered, either by bringing a cross action for breach of warranty, or proving the real value and abating the re covery pro tanto; Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54.

Where seed is not as warranted and the purchaser discovers this fact before using it, he may retain the seed and recover in dam ages the difference between the market price of the seed he received and the purchase price of the seed had it been as warranted; Dunn v. Bushnell, 63 Neb. 568, 88 N. W. 693, 93 Am. St. Rep. 474.

Where the seller is not informed that the buyer intends to mix the seed before sowing or planting it, the purchaser is not entitled to recover the value of the seed thus mixed with the impure seed purchased ; Fox v. Everson, 27 Hun (N. Y.) 355.

For breach of warranty that seed is true to name, the measure of damages recoverable is the value of the crop, had the seed been true to name, such as would ordinarily have been produced that year, deducting the ex pense of raising the crop and also the prod uct and value of the crop actually raised; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13. So also where seed is warranted as to kind and quality, but because of poor quali ty it does not properly germinate and grow, but only a partial crop results; Flick v. Wetherbee, 20 Wis. 392.

The purchaser is not entitled to recover in terest on the damages from the time the crop would have been harvested and sold, since the demand is unliquidated and the amount cannot be determined by computa tion simply or reference to market values ; White v. Miller, 78 N. Y. 393, 34 Am. Rep. 544.

See SALES ; WARRANTY; NURSERY. As to damages recoverable, see MEASURE OF DAM Aers ; note in 37 L. R. A. (N. S.) 79.