PYLE v. EASTERN SEED CO. et al., 198 S.W.2d 562

SLATTON, Justice. Pyle recovered a judgment in the district court of San Patricio County against Eastern Seed Company for the sum of $5200. The judgment of the trial court was rendered upon the following findings of the jury: 1. The seller, in selling 50 pounds of seed to the buyer, represented that the seed were babosa onion seed. 2. That the' buyer relied on the representation that the seed were babosa onion seed. 3. That the seed sold were not-babosa onion seed. 4.

That if the seed had been as represented the buyer would have raised a crop of babosa onions and that such crop would have had a market value of $5200. 5. That the buyer did not have notice of the contents of the nonwarranty clause printed in the body of the purchase agreement before the seed were planted. 6. That the buyer did not have notice of the contents of the nonwarranty clause printed on each of the sacks of onion seed before the same were planted. The Court of Civil Appeals at San Antonio reversed the judgment of the trial court and rendered judgment in favor of the Eastern Seed Company. 191 S.W.2d 708.

The question presented to this court for decision arises out of the following contract : “Order Sheet 1052 “Eastern Seed Co. “Wholesale and Retail Seeds “Insecticides and Dusting Sulphur “Corpus Christi, Texas “Date-9-6-1943 “Sold to Ellis Pyle “P. O. Address Odem, Texas “Shipping Address- “How Ship-When Ship- “Terms: Cash. Payable in ' Corpus Christi. F. O. B. Corpus Christi “Notice: All sales subject to loss or damage by fire, shortage or failure of crops, and contingencies beyond control.

Eastern Seed Co. gives no warranty, express or implied, as to description, purity, productivity, or any other matter of any seed we may send out, and we will not be in any way responsible for the crop. "Quantity

Article Price Per SO# Babosa onion seed Market “Subject to our ability to obtain “Price quote lots for your approval “State Distributors Mississippi Pedigreed Stoneville and Delfes Cotton Seed “This order is taken ‘subject to confirmation’ by Eastern Seed Company, and in case of crop shortage is subject to pro rata delivery on exactly the same basis that Eastern Seed Company receives from their grower or supplier. “Signature of Buyer: (Signed) Ellis Pyle “Signature of Salesman: (Signed) Joe Kirkpatrick” Pyle contends that the failure of the seller to furnish him the variety of onion seed contracted to be delivered is a breach of the contract, and such breach sustains the judgment of the trial court.

This contention is sound enough if the contract did not contain what is generally designated as a nonwarranty clause. The buyer and the seller were free to make whatever contract they desired, so long as its provisions were not illegal or immoral. They agreed that the seller gave no warranty, express or implied, as to description, purity or productivity, and would not be in any manner responsible for the crop. In other words, the buyer agreed to this provision of the contract and bought the seed knowing that the seller was protecting itself under the nonwarranty provision.

It is firmly established that where parties have signed, and thereby entered into a written contract, they are bound by its provisions. White, Ward & Erwin v. Hager, 112 Tex. 516, 248 S.W. 319. The soundness of the above rule cannot be successfuly questioned. To allow Pyle a recovery in the face of the nonwar-ranty clause would, in our opinion, render nugatory and meaningless an important clause of the contract. We have not been cited to a case, nor have we found one, in which this question has been decided by this court. The decisions of other jurisdictions are not in harmony.

See notes contained in 16 A.L.R. 880, and supplemental notes contained in 32 A.L:R. 1244, 62 A.L. R. 454, and 117 A.L.R. 476. We adopt the following statement contained in the opinion in the case of Leonard Seed Company v. Crary Canning Co., 147 Wis. 166, 132 N.W. 902, 903, 37 L.R.A.,N.S., 79, Ann.Cas. 1912D, 1077, as sound: “Neither of the parties here are under guardianship or incompetent to contract. There is no claim that the contract signed was not the one agreed upon, or that both parties did not fully understand what they were agreeing to.

Plaintiff [seed seller] plainly undertook to relieve itself from liability in case of intermixture, and defendant agreed that it should be relieved. It is not claimed that the conti’act is void, because contrary to public law or to public policy, and, if not, effect should be given to it. * * * If it be conceded that the contract is one-sided, it must also be conceded that the parties had a right to make a one-sided contract if they saw fit.” The case of Lumbrazo v.

Woodruff, 256 N.Y. 92, 175 N.E. 525, 527, 75 A.L.R. 1017, by the New York Court of Appeals, has the following reasoning which we think is sound: “Neither party was obliged to enter into this contract, and there is no public policy which prevents adult persons of sound mind making such agreements as they please, not prohibited V statute, or contrary to natural justice and good morals. This court and other courts have recognized the validity of agreements limiting or excluding implied warranties.” Pyle relies on the cases of Smith v. Oscar H. Will & Co., 51 N.D. 357, 199 N.W. 861, and Rocky Mountain Seed Co. v.

Knorr, 92 Colo. 320, 20 P.2d 304, and Hoffman v. Dixon, 105 Wis. 315, 81 N.W. 491, 76 Am.St.Rep. 916. It is to be observed in these cases that the nonwarranties relied on were not contained in thfe written contract between the parties, but appeared either on the sacks or in the literature of the seller; also the seed contracted for were not delivered at all, but other and different seed were delivered in each of the cases.

In the present case the non-warranty clause is contained in the written contract between the parties an<J said non-warranty appears to have been printed on the sacks in which the seed were delivered. The seed actually delivered were admittedly onion seed, but not of the variety contracted for, that is, babosa onion seed. Our decision here is therefore confined to a written contract where the nonwarranty clause is contained in it. The seed delivered were onion seed, but not of the variety contracted.

Since the parties were free to make whatever contract they desired, and having agreed to the nonwarranty clause, we conclude that each should be bound thereby. We deem it appropriate to point out that this suit is not one for the recovery of the purchase price of the onion seed. Pyle’s theory of recovery is twofold, one for a breach of contract, the other for fraud, but on both theories the damage alleged is the market value of the crop that would have been produced on the fifty-two acres of land had the land been planted to babosa onions.

Pyle filed a motion in the trial court praying for judgment in his behalf on the verdict of the jury. Pursuant to the motion the trial court rendered judgment in Pyle’s favor against the seed company for $5200, which sum the jury had found to be the market value of the onions had the land been planted to babosa onions. The seed company appealed to the Court of Civil Appeals. Pyle did not request the trial court to render a judgment in his favor for the purchase price of the onion seed; neither did he complain in the Court of Civil Appeals of the failure of the trial court to do so.

Moreover, the application for writ of error which Pyle filed in this court does not complain of his failure to recover the price paid for the onion seed. It is therefore apparent that as the record is presented before us, a decision of whether Pyle has a good cause of action for the recovery of the purchase price paid for the onion seed is immaterial. The Court of Civil Appeals correctly reversed the judgment of the trial court and rendered judgment in favor of the seed company. Its judgment is affirmed. TAYLOR, J., dissenting. ALEXANDER, C. J., and SHARP, J., concurring in the dissenting opinion.