Navarro Seed Co. v. Arant

428 S.W.2d 152, 1968 Tex. App. LEXIS 2762
CourtCourt of Appeals of Texas
DecidedMarch 25, 1968
DocketNo. 7794
StatusPublished

This text of 428 S.W.2d 152 (Navarro Seed Co. v. Arant) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Navarro Seed Co. v. Arant, 428 S.W.2d 152, 1968 Tex. App. LEXIS 2762 (Tex. Ct. App. 1968).

Opinion

CHAPMAN, Justice.

This is an appeal from a judgment in a case involving fact findings tried to the court on a contract case.

Harold Arant and Don W. Slaughter, grain growers, sued Navarro Seed Co., Inc. for damages sustained by them resulting from failure of the company to purchase [153]*153the certified milo seed identified in the record as Lot 903. Such lot represented only one of several lots of seed grown by appellees for Navarro under a seed dealers-grain growers contract. The others are not involved in the suit.

Among the conditions of the written contract was a sentence stating: “Any grain testing below 75% 1 shall remain the property of the GROWERS unless otherwise agreed upon between the parties.” Whether Lot 903 tested the minimum requirements under the contract constitutes what we believe to be the principle controversy on this appeal. Paragraph 4 of the contract provides the seed should test 85% germination determined by a recognized seed laboratory. The court found as a matter of law that such 85% requirement was a general contract provision and being in conflict with the specific provisions of Paragraph 8 providing a sliding scale of $3.45 per cwt. on a minimum of 75% germination to $4.20 per cwt. on a minimum of 85% germination, the general must yield to the specific. No issue is made on appeal concerning that question.

Navarro’s first six points are devoted to the contention that the court committed reversible error in finding Lot 903 tested 76% germination, in considering inadmissible evidence in making that determination, and that in finding 76% germination the court made a mathematical error by computing and analyzing the test results of an unrecognized laboratory.

The trial court at the request of appellant made findings of fact and conclusions of law. It is the established law of this state that an appellate court in determining whether the trial court’s findings are supported by any evidence of probative value will give credence only to the evidence favorable to the findings and disregard all evidence to the contrary. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963). “The trial court may draw any reasonable inference from the evidence and any doubts as to the facts raised by the evidence will be resolved in favor of the judgment.” Republic Insurance Co. v. In-verness Estates, 252 S.W.2d 251 (Tex.Civ. App.-Fort Worth, 1952, writ ref’d). We must, therefore, look to the record testimony to find if there was any probative evidence that the seed in Lot 903 tested the minimum germination requirement, as determined by a recognized seed testing laboratory.

If we understand appellant’s contention in this respect it is that all the tests made by recognized seed laboratories must be averaged and if they do not result in the exact amount of 76% found by the trial court in its findings of fact then the case must be reversed. We do not believe under the contract this court is so bound. The contract provides for a minimum of 75% germination on the minimum price and that the germination shall be * * * “determined by a2 recognized seed laboratory”, not a group of recognized seed laboratories. We would have to write a different contract by judicial decree to uphold such contention.

Appellant itself sent two samples to Hul-sey Seed Laboratories in Decator, Georgia. Mr. Hulsey himself testified. There is no question in the records as to his laboratory being a recognized seed laboratory or to his qualifications for making the tests. They were made by him personally. One of the tests made by him showed 74.5% and one 83.0% on Lot 903 for an average of 78.75% and he testified a tolerance is allowed on tests made at different times.

In honoring the inferences which must be indulged in favor of the judgment, we hold those tests showed some probative evidence to justify a finding that the germination tests met the minimum standard. If there is any evidence reasonably tending to prove, either directly or by permissive inference, the essential fact, the judgment must be sustained. Benoit v. [154]*154Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951); Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 (1959). A discussion of the other facets of appellant’s group of six points would only extend this opinion and we believe add nothing thereto.

In its other two points appellant contends the court erred in finding the Lot 903 seeds were of such quality and purety that there would be some demand for such seeds when offered for sale upon the open market and in concluding they are marketable seeds. Both the no evidence and factually insufficient evidence points are raised in the question if we give a liberal construction to the statement in the point that the evidence was insufficient. Appellant admits it has cited no authority for these contentions.

In passing upon the factually insufficient evidence we recognize the court’s findings may be challenged on the weight and sufficiency of the probative evidence the same as in a jury case. Appellate Procedure of Texas 10-20, Sec. 10.5; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). This being true the same rules would apply as in King’s Estate, King v. King, 150 Tex. 662, 244 S.W.2d 660 (1951). We shall discuss the factually insufficient evidence point first.

The court concluded that marketability as used in the contract means seeds for which there would be some demand when offered for sale as seeds on the open market and that they were of such quality and purety that the sale is not prohibited under Art. 93b, Sec. 3(a) (5) (B), Vernon’s Ann. Texas Civil Statutes. Such statute allows for a tolerance of 100-seed of Johnson grass per pound. The seeds were placed in the open on the ground exposed to the elements when delivered in November and December and stayed there until February or March. The letter of rejection did not mention Johnson grass seed. A sample was sent to the Texas Department of Agriculture in April, 1966. Even after all the exposure to outside conditions only seven Johnson grass seeds were found out of a package of approximately 9,000-seed. The record shows Mr. Arant used as many as 72 hoe hands in keeping Johnson grass from growing and blooming in the field, that the few seeds found in the sample could have gotten into Lot 903 in a number of ways other than from the plant blooming in the growing seed field, and additionally the court found the appellant waived the presence of Johnson grass seed. It is true the seed did not sell but there is evidence to the effect that there existed a surplus of the particular type of seed in Lot 903 and the market was burdened with it.

There is not any probative evidence to the effect that low germination or Johnson grass seed made Lot 903 unmarketable except some general statements from witnesses that they would not buy milo seed with Johnson grass in them.

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Related

In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Brown v. Frontier Theatres, Inc.
369 S.W.2d 299 (Texas Supreme Court, 1963)
Benoit v. Wilson
239 S.W.2d 792 (Texas Supreme Court, 1951)
Clifton v. Koontz
325 S.W.2d 684 (Texas Supreme Court, 1959)
Republic Ins. Co. v. Inverness Estates
252 S.W.2d 251 (Court of Appeals of Texas, 1952)
Woodward v. Ortiz
237 S.W.2d 286 (Texas Supreme Court, 1951)

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Bluebook (online)
428 S.W.2d 152, 1968 Tex. App. LEXIS 2762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/navarro-seed-co-v-arant-texapp-1968.