On appeal from the Supreme Court.
For the plaintiff-appellant, Joseph Tomaselli (Samuel P. Orlando, of counsel).
For the defendant-appellee, Altman & Backer (Samuel Backer, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of nonsuit entered in the Supreme Court by order of Judge Palmer, sitting in the Camden Circuit. The complaint alleges that plaintiff purchased from defendant a quantity of plant seed,
informing defendant that plaintiff desired "Improved Long Green Cucumber Seed" for planting on his South Jersey farm; that defendant sold plaintiff seed declaring and representing it to be "Improved Long Green Cucumber Seed" of good and excellent quality which would produce desirable and favorable results; and that relying on these representations, plaintiff engaged the services of others to assist him in preparing the soil, sowing the seed and cultivating the plants; that he purchased fertilizer and other farm materials and expended other divers moneys in keeping the soil and plants in proper condition, but that the seed turned out to be of inferior grade and quality and not of the description represented by defendant; that the representations made by defendant were false; that defendant knew or should have known that the seed was not as represented but was of inferior type, quality and not productive; that as a result of these false representations by defendant, plaintiff sustained the loss of his entire crop, loss of labor, services and profits; loss of time, moneys and materials in the preparation and cultivation of the soil for the planting of said seed and raising of said crop. Plaintiff demanded as damages the sum of $2,500.
At the conclusion of plaintiff's case there was testimony to the effect that defendant operated a hardware store at Hammonton, New Jersey; that he sold in April, 1940, an order of seed to plaintiff; that on his first visit he asked defendant for ten pounds of "Improved Long Green Cucumber Seed;" that defendant told him he didn't have any; that he would have to get it for him and would have it in three or four days. A week later plaintiff went to the store and in defendant's absence got the seed from his clerk and an order slip or bill on defendant's billhead for "10 lbs. Improved Long Green Cucumbers 90c $9.00." The seed was in a paper package on the back of which was marked "Improved Long Green Cucumber." Plaintiff sowed five acres of land with the seed. The plants came up and grew quickly with large leaves. Plaintiff's son, a farmer, who had grown cucumbers on his own farm for ten years, said that he had helped his father plant the seed and that he inspected the crop after
the seed had grown into plants and that the cucumbers were growing wild, and not like improved long green cucumbers grow, and, in his opinion, they were not improved long green cucumbers. He spoke to his father about it and his father called the county agricultural agent, Gould, to take some samples to the experimental station. The testimony shows that Gould was given three samples selected by plaintiff, two of which were about three to three and one-half inches long and the third about four inches long and these were mailed by Gould to Professor Charles H. Nissley, addressed to Extension Service, College of Agriculture, New Brunswick, New Jersey, for analysis.
While the professor's testimony was somewhat shaken under cross-examination, we incline to think that it, with the testimony of plaintiff's son, would have been sufficient to justify the jury in finding that the crop of cucumbers produced was not of the improved long green type. The professor also said, however, that the growth and yield of a crop depends very much on many factors and not alone on the seed; that among these factors are the method of planting, the knowledge, ability and work of the grower, particularly the preparation and structure of the land, the presence or absence of insect pests, the suitability of the soil, the previous rotation of crops and whether the fertilizer is proper, &c.
There was testimony indicating that there was a growth of a crop but the plaintiff said he harvested only about one-half bushel of cucumbers and if the plants had been productive of cucumbers for sale, it (sic) would have produced about 1,500 bushels and that the market value for that season ranged from $1 to $1.50 per bushel, and he figured his loss at $2,500 on that basis. There was no testimony to explain that the loss was not due to factors other than the quality, type or fertility of the seed.
In this posture of the case plaintiff rested and defendant moved for a nonsuit on four grounds, as follows: (1) that the suit was in fraud and there was no evidence of fraud; (2) there were no allegations in the complaint of a breach of warranty and the proofs did not show any ...