Larson v. Meckling Fertilizer Co.

243 N.W.2d 167, 90 S.D. 521, 1976 S.D. LEXIS 236
CourtSouth Dakota Supreme Court
DecidedJune 23, 1976
DocketFile No. 11734
StatusPublished

This text of 243 N.W.2d 167 (Larson v. Meckling Fertilizer Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larson v. Meckling Fertilizer Co., 243 N.W.2d 167, 90 S.D. 521, 1976 S.D. LEXIS 236 (S.D. 1976).

Opinion

DUNN, Chief Justice.

This is an appeal from a jury verdict for the plaintiff in the Circuit Court of Clay County. Defendant maintains on appeal that [523]*523(1) the evidence was insufficient to submit the case to a jury, (2) the court erred in not limiting damages to the purchase price of the Treflan, and (3) assuming liability, the ultimate responsibility for the verdict should be on the third-party defendant Elanco Products Company. We affirm.

This is an action for breach of warranty. Plaintiff is a farmer and farms near Gayville, South Dakota. Defendant sells fertilizer and herbicides and is located in Meckling, South Dakota. Defendant is the distributor for southeast South Dakota of the products of the third-party defendant ElanCo Products Company. One of the products made by Elanco and sold by defendant is Treflan, a pre-emergent herbicide.

In the spring of 1973, plaintiff was planning to plant soybeans on a particular 40-acre field. He was concerned about a possible infestation of weeds, particularly pigweed and firebush. Plaintiff went to defendant's store in Meckling and spoke to defendant’s ihánagér Clayton Campbell. Either plaintiff or Mr. Campbell mentioned that Treflan, made by Elanco Products, might do the jób. Mr. Clayton reláted Treflan’s guarantee and plaintiff said that he would buy it. Mr. Campbell read to plaintiff the label from a Treflan can which said that it would control pigweed and firebush. It Was agreed that the Treflan would be mixed with a fertilizer which plaintiff also purchased from defendant. Mr. Campbell agreed that defendant would properly mix the Treflan with the fertilizer and apply it to plaintiffs field. Plaintiffs only responsibility was to see that the mixture was properly incorporated into the soil by discing and then crossdiscing the field.

Elanco Pródücts sullied warranty cards with the Treflan. Plaintiff filléd out the Warranty card and mailed it in.

Sometime after the mixture Was applied and the soybeans were planted, plaintiff noticed a gi*eat deal of weeds growing in his soybean field. Hé notified Mr. Campbell and it was suggested that he apply the herbicide 2-4D to the field. This killed the weeds that had emerged, but it also killed the soybean plants which had emerged. Thereafter, more weeds began to appear in the field. As [524]*524a result'of the weeds and the application of the 2-4D, the field yielded only 7V2 bushels per acre, whereas a similar field farmed by plaintiff yielded between 25 and 251k bushels of soybeans per acre.

Plaintiff commenced this action against defendant on February 11, 1974. Plaintiff alleged a breach of guarantee in the sale and application of the Treflan and fertilizer. Defendant brought Elanco Products into the action as a third-party defendant, alleging that all the warranties were made by Elanco and that defendant should be indemnified for any judgment plaintiff might receive against it. Trial was held on April 16, 1975. The jury found for the plaintiff and against the defendant for $4,480. The jury found against Elanco Products on the third-party complaint, but awarded defendant no damages. In response to a special interrogatory, the jury indicated that it found no defect in the product Treflan.

Defendant subsequently moved for judgment notwithstanding the verdict or, in the alternative, a new trial. This motion was denied by the trial court.

Defendant contends that the only express warranties which plaintiff relied upon were those made by the third-party defendant in its advertising and packaging materials. This being so, it says that the evidence was insufficient for two reasons. First, it argues it made no independent warranties and that it merely “parroted” the express warranties of Elanco Products. It concluded that it should not be bound by the warranties of the manufacturer since it was merely an intermediate seller.

After a careful examination of the evidence presented to the trial court, we cannot concur with defendant’s analysis. The record reveals that Mr. Campbell not only passed on to plaintiff the written warranties of Elanco Products regarding the product Treflan but also assured plaintiff that defendant would properly mix the right amount of Treflan with the right amount of fertilizer and properly apply it to plaintiff’s soybean field. Defendant’s argument here assumed that the sale involved only the Treflan. In actuality, plaintiff purchased a mixture of Treflan and [525]*525fertilizer. Defendant expressly warranted that the mixture would be properly mixed and applied. This was defendant’s guarantee, not Elanco Products’. The jury could properly find a breach of warranty in the mixing of the Treflan and fertilizer or the application of the mixture.

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Bluebook (online)
243 N.W.2d 167, 90 S.D. 521, 1976 S.D. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-meckling-fertilizer-co-sd-1976.