
    SLINGER, Respondent, v. TOTTEN, Appellant.
    (160 N. W. 1008.)
    (File No. 3989.
    Opinion filed January 20, 1917.)
    1. Sales Warranties — Sale of Seed Corn — Whether Seed Would Grow — Implied Warranty.
    Where plaintiff ordered seed corn from defendant, and planted it without making any test, while haying ample time to do so, and upon its failure to germinate, sued for 'breach of warranty under the sale contract, and for loss of his crop, held, that under defendant’s representations in a catalogue, which was claimed to warrant the quality of the seed corn, and which recited that all seeds were thoroughly tested, assured that the ■seeds were full of life and, with normal conditions, a perfect stand of plants would result, and “guaranteed” all seeds sent out by defendant; that kernels germinated quickly, represented that seeds might ‘be tested any.way purchaser liked, and that ten days after receipt of goods would be allowed for making test, and if not satisfactory, price would be refunded, held, that there was no implied warranty that the seed would germinate, defendant having “guaranteed” that tlhe corn had been tested, and that it would test satisfactorily, not that it would grow if planted in the field; .that by expressly warranting the corn to test satisfactorily, defendant limited his warranty to the results of a test, and by agreeing to refund purchase money in case test did not result satisfactorily, he limited liability to amount of purchase money.
    2. Same — Implied Warranty, Express Warranty as Excluding.
    Under the law of sales, an implied waranty arises only when there is no express warranty, which latter excludes an implied warranty.
    Appeal from 'Circuit Court, 'Clay County. Hon. Robert B. ’Tripp, Judge.
    Action toy Albert Slinger, against S. M. Totten, 'doing business as The Totten’s Vermillion Seed House, to recover damages for alleged, breach of' warranty in a sale of seed corn. From an order overruling a demurrer to the complaint, defendant appeals.
    Reversed.
    
      Gunderson & Gunderson, and French & Oms, for Appellant.
    
      T. M. Zink, and H. G. Tilton, for Respondent.
    Under point one of the opinion, Respondent submitted that: The catalogue does not require the respondent to test the seed corn. Vendor’s advise may have been good, but it is not binding on the customer. That there is an express warranty as to the quality, kind and fitness oí the seed1 corn sold to- respondent by appellant. If appellant desired to limit this general warranty h-e -should 'have dione so 'by language unmistakable. in its meaning and susceptible of -being understood -by the persons to- whom he mailed • his catalogue. This h-e wholly failed to- -do. H-e offered advice and gave recommendations, but there are not limitations of the general warranty contained in the catalogue; and cited: Sanford v. Brown, 50 R. R. A. (N. S.) 782; Rind'sey v. Fricke, 109 N. W. 948; McCormick v. Harvesting, etc., 95 N. .W. 886, 887; Hammond v. Sandwich, 131 N. W. 1097, 1098.
    (2) To point two of the opinion, Appellant submitted that: While, as a general rule, no -warranty will be implied where the parties have expressed in words the warranty by which they mean to- be bound, yet the rule -does not extend to the exclusion of warranties implied by law where 'they -are not excluded by the terms -o-f th-e contract; and -cited: 2 Ben-j. on Sales, Sec. 1002; B-ucy v. Pitts Agricultural Works (la.) 56 N. W. 541; Backmore v. Fairbanks, (la.) 44 N. W. 548.
   PORREY, J.

This action was brought by plaintiff to recover damages for alleged breach of warranty of a quantity of seed corn s-ol-d to plaintiff by -defendant. Plaintiff ordered- the seed corn, by mail and without inspection, -from a catalogue issued by defendant, and whatever -warranty was made by defendant is found in said- catalogue. The portion of 'said catalogue claimed to constitute said warranty is as follows::

“* * * My seeds are all good, and I want every'purchaser to- -know as near as possible just what 'he will get when he sends in his order. * * * All seed's are thoroughly tested. The value of tested seeds cannot he overestimated. You are -assured1 that the seeds are vigorous and full of life, and, with normal conditions, y-ou w-ill get a perfect stand of plants that -will be a pleasure to watch grow instead of a disappointment. I guarantee all seeds sent -out from this bouse. All seed's are carefully tested by'me before shipment is made. Therefore I -am perfectly willing to- guarantee a satisfactory test. Ten days after you receive the goods will be allowed f-or you to- make a thorough test. Te's-t -them- any old way you like and, if not satisfied, let me know and I will refund vour m-oney. Ret me urge right 'here, it matters not fromi whom you buy, you should' carefully test your seed. There is too much at stake for you to take any chances 'in this matter. All my seed corn is grown in Gay county, South Dlakota. To get a good crop of corn, it is absolutely necessary to have good seed. It costs as much to prepare the ground, and 'is just as expensive to cultivate the ground for half a stand from poor seed as where you have a full stand from good seed, but the difference in the yield i's greater than moist people would think. Don't wait till spring and go to the crib- and trust to luck; get busy now and test your seed' and know. * * * We have used the • greatest care in handling our seed and the tests we are now making show the good work done, as the tests run very strong. If seeds are not as represented and do not test out satisfactorily to you, we take it back' and you get your -money and1 no kicking. * * * Marly Murtfo-ck. This is one of the grandest varieties of early corn ever offered, and one that will surprise and please any fanner who tries it. Stalks grow seven to eight feet high and set the ears about 3^4 feet from the ground- — an ideal height for picking. It i's a very early i<ind, ripening in ninety to ninety-five days. It is a pure yellow, deep grain, remarkably thoroughbred and true to type; has eighteen to twenty rows, small cob. All ears -are well matured, kernels germinate quickly, and send up -good' strong plants right from the start. One remarkable and pleasing peculiarity about the Early Murdock that I noticed in going over my fields was that there were very few barren stalks. Nearly every stalk has from one to -tw'o large ears. Mr. Fanner, you should try this corn. It is good, and I know you will like it.”

Plaintiff purchased the variety oif corn above described as “Early Murdock,” and planted , it without malting any test whatever. He alleges in his amended complaint that the planting was dbne in a reasonably careful manner; that it was done in •the proper time of the year; that the ground in which it was planted was properly prepared for the planting of corn; -and that the weather and other conditions at the time the corn was planted, and for a sufficient length of time thereafter for said corn to germinate, was favorable to the germination of corn, 'but that notwithstanding said facts only -a very small percentage of said corn ever germinated or grew. The result was that, although he. replanted his field' with other seed -corn he succeeded iir raising only about half a crop, and he now seeks to recover from defendant the damage he suffered by reason of -the partial loss- of his corn crop.

Defendant demurred to the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action, and, from an order overruling such demurrer, defendant appeals.

Plaintiff bases his right of recovery upon the theory that, the corn having been sold for seed, there was an implied warranty that it was suitable for the purpose for which it was sold, or, in other words, that it would grow when .planted. It is conceded by both parties that, 'by the use of the language quoted from the catalogue, defendant expressly warranted that, if tested, ■tire corn- would give satisfactory results, and that, if tested, and the results were not satisfactory, plaintiff might return the corn and his money would be refunded. B-ut -it is contended by plaintiff that the making of such test was permissible only, and not obligatory upon him, andi that in addition to warranting the corn to test satisfactorily, there is also- “an express warranty as to the quality, kind, and fitness” of the said seed corn. This contention is based upon the following isolated clauses of the contract quoted1 in the amended complaint:

“My seeds are good and I want every purchaser to know, as near as possible, just what he will get when he sends his order. * * * All seeds are thoroughly tested. The value of tested seeds cannot be overestimated. You are assured that the seeds are full of life and, with normal conditions, you will get a perfect stand of plants that will be a pleasure to watch grow instead of a disappointment. * * * I guarantee all seeds sent out from this house. * * * All ears are well matured, kernels germinate quickly, and send up strong plants right on the start. * * * It is good and I know you will -like it.”

Whether this language, if unqualified by other portions of the contract, would bear the construction placed upon it by plaintiff it is not necessary to determine. The entire contract must be read together, and, when so read, it does not support plaintiff’s contention. While the language of the warranty is broad, so far as the general quality of the corn is concerned, it is limited in respect to the rights of the plain-tiff and the liability defendant is willing to assume. Defendant “guarantees” that the corn will test satisfactory, not that it will grow if planted in the field. It is well understood that by testing seed corn is meant the planting of a small quantity of it in a hotbed or other place where it is protected from -out-door weather ’conditions. It is merely a test of the germinating' -powers of the seed under favor-able conditions, and it may well ¡be that a vendor of seed corn would be willing to refund the purchase money in case -it would not test satisfactorily when he would not -be willing to warrant, either expressly or impliedly, -that it would grow when planted in the field and ’become liable for the value of a field o-f corn in case said seed did not grow. By expressly -warranting the corn- to> test satisfactorily he limited his warranty to the results of a test, and by agreeing to refund the purchase money 'in case a test did not show satisfactory results, he limited his liability to the amount of the purchase money.

It is a well settled principle of law as applied to sales that an implied warranty arises only when there is no express warranty, and that an express warranty always excludes an implied warranty. Tied, on Sales, § 182; Mechem on Sales, § 1259; 35 Cyc. 392; Sheafe v. Zastrow, 30 S. D. 159, 138 N. W. 16. While the warranty expressed fin the contract and .the implied warranty contended f-or by the plaintiff are stated in different language, both warranties relate to- the same quality of the seed corn, to'-wit, to its. germinating’ quality. ’The only difference is in the -manner of ascertaining the existence of this quality.

Under the terms of -the contract as set out in plaintiff’s amended complaint, he had it in his power to protect himself from any loss whatever -except the trifling expense of testing the corn. He alleges in his amended complaint that he purchased the corn on or about the 1st day -of February ,and that he did not plant it until -between the nth- and 20th days' of the following month of May. Had he availed himself of his1 rights under the terms of the -contract, and as the defendant -urged -him to- do, by testing the corn, within ten days after he purchased.it, he w-ould have ascertained that it was not fit for seed and would not only 'have been able to return it and have had his purchase money returned to (him, but could! have (procured other seed before planting1 time. Having failed to make the test of the said seed corn, as provided' for in the contract, and having’ planted the same without testing it, he assumed the risk of its germinating qualities, and the defendant was relieved from' further liability.

The order appealed from is .reversed.  