Andrew Stumler v. Ferry-Morse Seed Company, Thomas S. Castle Farms, Inc., and A. L. Castle, Inc.

644 F.2d 667, 30 U.C.C. Rep. Serv. (West) 1590, 1981 U.S. App. LEXIS 19241

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 16, 1981
• Docket: 80-1864
• Status: Published

Opinions

PER CURIAM.

This is a diversity suit for breach of express and implied warranties in connection with the sale of tomato seeds. In December 1974, plaintiff, an Indiana tomato farmer, bought a quantity of Heinz 1439 VF tomato seed from defendant Ferry-Morse Company, which had bought the seed from defendants Thomas A. Castle Farms, Inc. and A. L. Castle, Inc.¹ Heinz 1439 VF seed is described in Ferry-Morse’s brochures as producing a particular kind of tomato. Plaintiff took delivery of the seed in March 1975 in containers labelled Heinz 1439 VF variety. At harvest time in September 1975, plaintiff allegedly discovered that the fruit produced from the seed was not Heinz 1439 VF variety.

On June 20, 1979, plaintiff commenced this action seeking damages of $150,000. Defendants moved for summary judgment on the ground that the claims were time-barred under the Indiana Uniform Commercial Code, which provides that an action for breach of warranty in connection with the sale of goods must be brought within four years of the date of delivery even if the buyer had no knowledge of the breach at the time of delivery unless the warranty explictly extends to future performance. (Ind.Code, § 26-1-2-725; emphasis supplied).

District Judge Dillin concluded that the sale of tomato seeds is a sale of goods as defined in Section 26-1-2-105(1) of the Indiana version of the Uniform Commercial Code, that the express warranties concerning the type of fruit to be produced did not explicitly extend to future performance, that implied warranties by definition cannot explicitly extend to future performance, and that the four-year statute of limitations therefore began to run when plaintiff took delivery of the seed in March 1975. Accordingly, he held the suit time-barred, granted defendants’ motion for summary judgment, and dismissed the cause with prejudice. Plaintiff appeals.

Our initial sympathy for plaintiff is tempered by the realization that he had four years from March 1975 in which to file suit. The tardiness in so doing rests with him or his counsel. We are wholly in accord with the reasoning and conclusions set forth in Judge Dillin’s opinion, which we adopt and attach hereto.² For the reasons stated therein, the judgment is affirmed.

1 . All the defendants are California corporations.

2 . See also Binkley Co. v. Teledyne Mid-America Corp., 333 F.Supp. 1183, 1185-1187 (E.D.Mo.1971) (Webster, J.), affirmed, 460 F.2d 276, 277 (8th Cir. 1972); Raymond Dravo-Lagenfelder v. Mirodot, Inc., 425 F.Supp. 614, 617-618 (D.Del.1976); Hall v. Gurley Milling Company of Selma, N.C., 347 F.Supp. 13 (E.D.N.C.1972) (pre-Uniform Commercial Code); Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964); 67 Am.Jur.2d, Sales § 538, p. 725, and cases cited. Discovery of the breach controls the commencement of the statute of limitations only where the warranty “explicitly extends to future performance of the goods” (Indiana Code § 26-1-2-725(2)); White & Summers Uniform Commercial Code (1972) § 11-8, pp. 341-342. Only if this express warranty had explicitly extended to future performance of the goods, the statute of limitations would have commenced running in September 1975 when plaintiff discovered that he had been sold the wrong seed.

The brochure on which the dissent relies listed 105 varieties of tomatoes sold by Ferry-Morse. The 12th line of the brochure states as follows under the following headings:

Code Variety Fruit Size Maturity Fruit Shape Firmness Color

17290 Heinz 1439 VF Med/Lge Medium Deep Oblate Firm Red

Clearly, this is insufficient to amount to a warranty that “explictly extends to future performance of the goods” as required by the applicable provision of the Uniform Commercial Code (emphasis supplied). At best the brochure warranty was implicit as to future performance, so that the statute of limitations began to run upon delivery.