Opinion
June 16, 1941.
1. — Sales — Contracts — Warranties — Evidence. In suit for damages for breach of alleged warranty in sale of blue grass seed where parties agreed that the terms of the contract had not been all agreed upon until letter written by seller after seller's confirmation of sale, and buyer's petition and its conduct of trial proceeded upon such theory, all of the telegrams and correspondence between the parties, including printed matter on letters of seller, disclaiming warranty, constituted part of sales contract and trial court erred in excluding printed parts of the correspondence.
2. — Sales — Contracts. To constitute an express warranty the term "warranty" need not be used; no technical set of words are required and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should do.
3. — Sales — Contracts. The affirmation of a seller as to the quality or constituting a description of the kind of the chattel sold may constitute a warranty, if so intended, and relied upon by the buyer.
4. — Sales — Contracts. Affirmations of quality or kind do not necessarily, of themselves, constitute warranties.
5. — Contracts. Where, as in the use of printed forms, a contract is partly written and there is a conflict between the printing and the writing, the writing will prevail, and handwriting, under the same rule, will prevail over typewriting and typewriting over printing, but where the antagonism is merely apparent, the difference should be reconciled, if possible, by any reasonable interpretation.
6. — Contracts — Construction. The rule that effect must be given, if possible, to all terms of a contract applies to instruments partly written and partly printed as well as to those wholly written or wholly printed.
7. — Contracts — Construction. Where sales contract of blue grass seed was based upon telegrams and correspondence between the parties, and telegrams and written parts of correspondence stated that seed would germinate 80 per cent and printed parts of correspondence excluded express warranty of 80 per cent germination, the printed matter, contained in confirmation of sale, and all of the telegrams and correspondence passing between the parties, relating to the warranty are to be considered and construed together.
8. — Contracts — Construction. It is imperative duty of courts to give effect, if possible, to all the terms of an agreement, and the construction is to be made on a consideration of the whole instrument and not on one or more clauses detached from the others, and such principle applies as well to instruments partly printed and partly written as to those wholly printed or wholly written.
9. — Sales — Warranties — Inferences. Where the word "warranty" or its equivalent does not appear in the contract, but there is some language appearing in it and it, and surrounding circumstances, standing alone, might give rise to an inference merely that a warranty was intended, such inference cannot be drawn in the face of positive and explicit language in other parts of the contract showing that no warranty was given or intended.
10. — Sales — Warranties — Inferences. Question whether representation is a warranty depends on its having been affirmed as a fact, and it must have been understood by the parties as having that character, must be positive and unequivocal and not merely a vague, ambiguous and indefinite statement of the seller regarding the property.
11. — Sales — Warranty — Opinions. Where telegrams and typewritten parts of correspondence passing between parties to sales contract of blue grass seed stated that seed would germinate 80 per cent but printed matter in letter which constituted part of contract contained an express disclaimer of any warranty and that seller would not be responsible for crop, the statement of seller that seed would germinate 80 per cent was merely the expression of an opinion and recovery could not be had against seller for breach of an alleged warranty.
12. — Contracts — Construction. Where contract was evidenced by writing in every detail its construction was one for the court and not for jury.
13. — Sales — Warranties. Implied, unlike express, warranties are arrived at by operation of law and conclusions announced by the court upon established facts.
14. — Sales — Warranties. Implied warranties are based wholly upon implications of law, as distinguished from inferences or implications of fact.
15. — Appeal and Error. Generally material error of trial court in excluding evidence results in remanding cause for another trial, but where it appears, as a matter of law that plaintiff cannot recover upon any theory, the judgment will be reversed.
Appeal from Circuit Court of Buchanan County. — Hon. Emmett J. Crouse, Judge.
REVERSED.
Culver, Phillip, Kaufmann Smith for appellant.
(1) The court erred in refusing defendant's Instruction No. 2 asked at the close of all of the evidence directing a verdict for defendant. Masdon v. Stone, 66 S.W.2d 582; Weaver v. Benton-Bellefontaine Ry. Co., 60 Mo. App. 208; Gilmore v. Modern Brotherhood of America, 186 Mo. App. 445; Skirvin v. McKamey, 237 S.W. 858; State ex rel. Witte Hardware Co. v. McElhinney, 100 S.W.2d 36. (2) The court erred in giving plaintiff's Instruction No. A because: (1) It restricted the issues made by the pleadings. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Schumacher v. Breweries Co., 247 Mo. 141, 152 S.W. 13; Bank v. Murdock, 62 Mo. 73. (2) It withdrew from the jury the issue of waiver on the part of the plaintiff raised by the answer. 67 C.J., p. 289; Lamar Water Light Co. v. City of Lamar, 140 Mo. 145, 39 S.W. 768; Henderson v. Koenig, 192 Mo. 690, 91 S.W. 88; Hayes v. Manning, 263 Mo. 1, 172 S.W. 897; Murmann v. Wissler, 116 Mo. App. 397, 92 S.W. 355. (3) The court erred in admitting incompetent testimony on behalf of plaintiff. Jordan v. Daniels, 27 S.W.2d 1052; McClurg v. Whitney, 82 Mo. App. 625; Davidson v. Knights of Pythias, 22 Mo. App. 263; State ex rel. Met. Life Ins. Co. v. Shain, 121 S.W.2d 789; Spruce Co. v. Mays, 62 S.W.2d 824; Hunter v. Waterloo Gasoline Engine Co. et al., 237 S.W. 819; Miller v. Great American Ins. Co. of New York, 61 S.W.2d 205; Cuneo et al. v. U.S. Casualty Co., 125 S.W.2d 908. (4) The court erred in excluding competent evidence which was material to defendant's case. 17 C.J.S., par. 297, p. 707, par. 310, p. 707, and cases cited under point 2, subsection 2.
Strop Strop for respondent.
(1) (a) Respondent pleaded and proved an express warranty. 55 C.J., sec. 682, pp. 674-675; International Shoe Co. v. Lipshitz, 72 S.W.2d 122, 125. (b) The trial court correctly submitted the case to the jury on the theory that an express warranty existed, since the contract was formed exclusively by writings from which the court determined the existence of the warranty and its terms. 55 C.J., sec. 847, p. 858; 24 R.C.L., sec. 438, p. 165; Davis v. Cramer, 188 Mo. App. 718, 725, 176 S.W. 468, 470; James Sons v. Marion Fruit Jar Bottle Co., 69 Mo. App. 207, 211; Union Service Co. v. Drug Co., 148 Mo. App. 327, 337, 128 S.W. 7, 10; Eagle Mill Co. v. Craven, 76 Mo. App. 458, 462; Falls Wire Manufacturing Co. v. John J. Broderick, 12 Mo. App. 378, 385; 13 C.J., sec. 1004, pp. 788-789; 100 A.L.R. 971. (2) (a) The existence and terms of the express warranty having been established solely by writings, the existence of the warranty and the construction of its terms were for the court. Authorities, supra, 1 (b). (b) The nonwarranty clause was properly excluded by the trial court since the warranty involved was express and since the nonwarranty clause formed no part of the contract and could not affect it. Authorities: See respondent's original brief, point (2) 2 (a) and (b). (c) The error, if any, in the trial court's exclusion of nonwarranty clause was harmless and not prejudicial, since it was later read to the jury by appellant's counsel. Authorities: See respondent's original brief, pages 44 to 50, inclusive; 5 C.J.S., sec. 1753, p. 1060; Steffens v. Southwestern Bell Tel. Co., 56 S.W.2d 47, 48; Foman v. Liberty Life Ins. Co., 51 S.W.2d 212, 214. (3) The trial court correctly gave respondent's Instruction A, and correctly refused appellant's Instruction 3. (4) The court was correct in not considering any custom of seed trade not to warrant, and not considering seed customs and the peculiar nature of the commodity because appellant's answer did not plead such customs and because there is no evidence in the record concerning any such matters. (5) The court correctly ruled that the cases cited by appellant were not in point since none of them involved an express warranty, such as exists in the case at bar, but involved instead only implied warranties. 16 A.L.R. 859 et seq.; 32 A.L.R. 1241 et seq.; 117 A.L.R. 470 et seq. (5) The trial court did not err in refusing defendant's Instruction No. 2, asked at the close of all the evidence, directing a verdict for the defendant, for the reason that the record discloses sufficient testimony to warrant the submission of the case to the jury, especially since the plaintiff's evidence must be accepted as true, and plaintiff is entitled to all reasonable inferences to be drawn therefrom. Perdue v. Montgomery Ward Co., 341 Mo. 252, 107 S.W.2d 12, 14; Stevens v. Meadows et al., 340 Mo. 252, 255, 100 S.W.2d 281, 283; Bennett v. Royal Union Mutual Life Ins. Co. et al., 232 Mo. App. 1027, 112 S.W.2d 134, 140; John v. Aetna Life Ins. Co. of Hartford, Conn. (Mo. App.), 100 S.W.2d 936, 939; Timmons v. Kurn et al., 231 Mo. App. 421, 100 S.W.2d 952, 957; Robertson v. Atchison, T. S.F. Co. (Mo. App.), 105 S.W.2d 996, 998; Millhouser v. Kansas City Public Service Co., 71 S.W.2d 160, 162. (7) 1. Defendant cannot complain of plaintiff's Instruction "A," which imposed a standard of 80 per cent and no less, with regard to the germination of the seed, because defendant joined in the error, if any, by asking and receiving Instruction No. 5 from the court; also in arguing to the jury that the defendant agreed to ship, to the plaintiff, seed germinating 80 per cent. Hampe v. Versen, 32 S.W.2d 793, 795, 796, 797; Hazell v. The Bank of Tipton, 95 Mo. 60, 66, 8 S.W. 173, 174; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 650, 666, 2 S.W. 3, 9; Olfermann v. Union Depot Ry. Co., 125 Mo. 408, 415, 416, 28 S.W. 742, 744; Harper v. Morse, 114 Mo. 317, 321, 21 S.W. 517, 518; Phelps v. City of Salisbury, 161 Mo. 1, 14, 61 S.W. 582; Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 467, 45 S.W. 268. 2. Plaintiff's Instruction "A" was correct in imposing a standard of 80 per cent and no less, with regard to the germination of the seed because: (a) Plaintiff's action is for a breach of contract which was formed by the exchange of letters and telegrams between the plaintiff and defendant and under these facts the existence of the contract and the construction of its terms is solely a question of law for the court. James Sons v. Marion Fruit Jar Bottle Co., 69 Mo. App. 207, 211; Union Service Co. v. Drug Co., 148 Mo. App. 327, 337, 128 S.W. 7, 10; Eagle Mill Co. v. Craven, 76 Mo. App. 458, 462; Falls Wire Mfg. Co. v. John J. Broderick, 12 Mo. App. 378, 385; 13 C.J., sec. 1004, pp. 788-789; 100 A.L.R. 971, 972. (b) Small type printed matter in letterheads, billheads or upon the bottom or margin of paper upon which a typewritten letter is written may not be regarded as a part of the contract because in such a case a plain meaning expressed in writing in the contract cannot be varied or added to or contradicted by such extrinsic matters, especially where the contract is expressed in clear and explicit terms, and especially where the typewritten matter does not refer to the printed matter. 12 Am. Jur. 245, p. 780; Annotation L.R.A. 1916D, 1072; Summers v. Hibbard, 153 Ill. 102, 46 Am. St. Rep. 872, 873, 874, 38 N.E. 899; R.J. Menz Lbr. Co. v. E.J. McNeeley Co., 58 Wn. 223, 108 P. 621, 28 L.R.A. (N.S.) 1007, 1011; Sturm v. Boker, 150 U.S. 312, 14 Sup. Ct. Rep. 99, 37 L.Ed. 1093, 1099; B.F. Sturtevant Co. v. Fire Proofing Film Co., 216 N.Y. 199, 110 N.E. 440, L.R.A. 1916D, 1069, 1071; Olson v. Wabash Coal Co., 126 Ill. App. 253; Constantion v. Mercedes, Berry Co., 39 P.2d 496; Ellis v. Stone, 21 N.M. 730, 158 P. 480, L.R.A. 1916F, 1228, 1233; Cohen v. Wolworth, 95 Misc. 479, 158 N.Y.S. 1081; Denivelle Co. v. Leonard Keil, Inc., 140 N.Y.S. 150, L.R.A. 1916D, 1072; Millhiser v. Erdmann, 103 N.C. 27, 9 S.E. 583; 6 R.C.L. 848, par. 237; 23 R.C.L., p. 1329, par. 149; 13 C.J., pp. 536, 537, par. 498. (8) The court did not err in refusing to permit the defendant to offer in evidence the remaining portions of exhibits, part of which were received into evidence on behalf of the plaintiff because the portions which the court refused in evidence formed no part of the contract. Further, the defendant was not prejudiced since it read to the jury, with the court's permission, part of the matter which the defendant contends was erroneously excluded at other times by the court. The other matter which defendant contends was erroneously excluded also was no part of the contract, and furthermore, it pertained solely to matters not at issue in the case. Authorities, Point (2) (a) and (b). App. Rec. 160. (9) Plaintiff's Instruction "A" was correct in withdrawing from the jury the issue of waiver because: (a) If a seller in professed whole performance of a contract of sale delivers personal property which fails to meet the contractual requirements, he is guilty of a breach of contract which gives the buyer the right to pursue one of two courses: 1. Either to rescind the contract; or 2. accept the property as partial performance and claim reimbursement from the seller for the loss sustained in consequence of the breach. Travers Co. v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; Phelps Manufacturing Co. v. Burgert, 115 S.W.2d 107; Simrall v. American Multigraph Sales Co., 172 Mo. App. 384, 390, 158 S.W. 437, 439; Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 208-209, 61 S.W. 820; 55 C.J. 812, sec. 794; A. Franck-Philipson Co. v. Hanna Young Handle Co., 200 S.W. 718, 722, 723; Walls v. Tinsley, 187 Mo. App. 462, 466, 467, 173 S.W. 19, 21; Eversole v. Hanna, 184 Mo. App. 445, 449, 450, 171 S.W. 25, 27; St. Louis Brewing Ass'n v. McEnroe, 80 Mo. App. 429, 431, 432; Crocker Wholesale Grocery Co. v. Evans, 272 S.W. 1017, 1018; New Birdsall Co. v. Keys, 99 Mo. App. 458, 463, 74 S.W. 12, 13; Branson v. Turner, 77 Mo. 489, 493, 494; Tall v. Chapman, 66 Mo. App. 581, 584. (b) In the case of breach of warranty or condition in the sale of personal property, the purchaser, although he accepts and retains the thing sold, may nevertheless sue for and recover the damages caused by such breach. Travers Co. v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; Ross v. Barker, 30 Mo. 385, 386; Phelps Mfg. Co. v. Burgert, 115 S.W.2d 107; Simrall v. American Multigraph Sales Co., 172 Mo. App. 384, 390, 158 S.W. 437, 439; Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 208 209, 61 S.W. 820; Walls v. Tinsley, 187 Mo. App. 462, 466, 467, 173 S.W. 19, 21; Crocker Wholesale Grocery Co. v. Evans, 272 S.W. 1017, 1018; Eversole v. Hanna, 184 Mo. App. 445, 449, 450, 171 S.W. 25, 27; St. Louis Brewing Association v. McEnroe, 80 Mo. App. 429, 431, 432; 55 C.J. 799, sec. 774, 85; Edwards v. Noel, 88 Mo. App. 434, 439. (c) And this, even though the purchaser retains the thing sold with knowledge that it does not fulfill the warranty or agreement. Travers v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; Redlands Orange Growers' Association v. Gorman, 161 Mo. 203, 208, 9, 61 S.W. 820; Edwards v. Noel, 88 Mo. App. 434, 439. (d) Nor is the purchaser under any duty to inspect. 24 L.R.A. (N.S.) 235, note. (e) The purchaser's right of recovery for breach of warranty or condition does not depend upon his having given notice to the seller or having objected to the seller of the breach of warranty or condition complained of. Redlands Orange Growers Ass'n v. Gorman, 161 Mo. 203, 208, 9, 61 S.W. 820; Travers v. Goldman, 255 S.W. 923, 924; 24 R.C.L., p. 244, par. 521; 55 C.J., p. 806, sec. 787. (f) Nor is the purchaser required to return or offer to return the property. Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, l.c. 208, 9, 61 S.W. 820; Travers v. Goldman, 255 S.W. 923, 924; Eversole v. Hanna, 184 Mo. App. 445, 449, 450, 171 S.W. 25, 27; Thompson v. Botts, 8 Mo. 710, 712, 713; Walls v. Tinsley, 187 Mo. App. 462, 466, 467, 173 S.W. 19, 21; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; Ross v. Barker, 30 Mo. 385, 386. (g) The purchaser's right of recovery is not precluded by the fact that the purchaser paid for the goods sold to him. Redland Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 208, 9, 61 S.W. 820; Travers v. Goldman, 255 S.W. 923, 924; International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125; New Birdsall Co. v. Keys, 99 Mo. App. 458, 463, 74 S.W. 12, 13. (10) This court on this appeal may not consider assignment of error No. 3 of the defendant because: (a) The matters complained of therein were not set up in defendant's motion for new trial. Wheeler v. Cantwell, 140 S.W.2d 749; Bartner v. Darst, 285 S.W. 449, 451. (11) Defendant is estopped and precluded from alleging any error in the trial of this case, except that the plaintiff failed to make a case for submission to the jury, because of statements and admissions made by the defendant's counsel in arguing the case to the jury. Hampe v. Versen, 32 S.W.2d 793, 795, 796, 797.
This is a suit for damages for the breach of an alleged warranty in the sale by the defendant to plaintiff of certain blue grass seed. There was a verdict and judgment in favor of plaintiff in the sum of $870. Defendant has appealed.
The contract of sale was in writing and made by the exchange of telegrams, letters and confirmations of sale passing between the parties. Plaintiff is a corporation with its principal offices in Baltimore, Maryland, and is engaged, among other things, in the selling of field seeds, wholesale only. Defendant is a Missouri Corporation with its principal offices located in St. Joseph, engaged in the same character of business.
On November 1, 1927, defendant wired the plaintiff at Baltimore, offering to sell Northern Missouri Grown blue grass seed of special weight and 77 per cent purity and 80 per cent germination, "November shipment if deferred ten cents per hundred per month carry charge." On November 2nd, plaintiff wired defendant: "Accept three hundred, nineteen pound minimum analysis figures as quoted deferred shipment carrying charges ten cents." On the same day defendant wired plaintiff: "Have booked as specified shipment not later than March Fifteenth." On November 3rd, plaintiff wrote defendant: "We confirm our exchange of wires as follows: (Here follows a copy of each of the foregoing telegrams and letters.) However, we cannot agree to be limited to March Fifteenth. We will be glad to try to move the car out before that time, but as you did not put any time limit on your offer we do not think that you have the right to put a limit on after your offer was accepted."
On the same day and, of course, prior to the receipt of the letter last mentioned, the defendant mailed to the plaintiff the following confirmation of sale:
"Sold to November 3, 1927. "The Belt Seed Co. "Baltimore, Md.
"Confirmation of Sale
"In accordance with terms adopted by all members of the Wholesale Grass Dealers Association and the American Seed Trade Association, the Mitchelhill Company gives no warranty, express or implied, as to description, quality, productiveness, or any other matter of any seeds we send out and we will not be in any way responsible for crop. If the purchaser does not accept the goods on these terms he must notify us at once and we will give disposition.
"300 Bags Northern Missouri grown 19 lb Purity 77, Ger. 80, $15.75 per 100 lbs. Freight paid to Baltimore. Shipment March 15th or sooner if desired. 10c carrying charge added to above price (10c per 100 month.)
"It is expressly understood that this order is not subject to cancellation and also contingent upon strikes, delay, accidents and occurrences beyond our control. Wire us immediately of any error or omission in this contract. Failure to do so constitutes your acceptance of all terms thereof."
The words "The Belt Seed Co. Baltimore, Md. . . . November 3, 1927" and the second paragraph of this communication were in typewriting. The balance of the communication was in rather fine type printing, yet easily read.
On November 9, 1927, defendant wrote plaintiff acknowledging receipt of its letter confirming the sale and stating: "Everything appears to be in order with the exception that we cannot very well deviate from some definite time as to ultimate shipment. In other words, this would not be a contract if otherwise. . . . We are still willing to extend time until April 1st. However, this would be our utmost limit, and if not satisfactory, please wire us immediately upon receipt, and will consider the trade cancelled. . . . We cannot afford to take any chances of carrying this seed over."
On November 12, 1927, plaintiff wrote defendant, acknowledging receipt of its letter of the 9th, and stating that: "Perhaps you are right that there ought to be a definite time limit on the Bluegrass seed contract;" that it likely would need the seed during the winter, but that it would "take it out by the end of April without fail." On November 15th, defendant wrote plaintiff, acknowledging receipt of its letter of the 12th, and saying that it would extend the time of shipment to April; that unless defendant heard from plaintiff to the contrary shipment would be made the last week in April. At the foot of this letter there was printed a disclaimer of warranty in the same character of type as that appearing in the first paragraph of defendant's confirmation of sale, dated November 3, 1927.
The seed was shipped on April 30, 1928. Defendant forwarded a bill with draft attached for the amount of the purchase price of the seed. This bill had printed thereon the same disclaimer of warranty as contained in defendant's confirmation of sale. The bill and draft were duly presented to plaintiff and paid. The deposition of the president of the plaintiff was introduced in evidence by it. He stated that he read the disclaimer of warranty clause in defendant's confirmation of sale and made no reply to it; that "This is a routine clause known familiarly as the Non-Warranty Clause, which is used on the stationery of some of the dealers in seeds, but as the telegram which concluded this contract didn't include it, we did not consider it of any significance."
There is no dispute as to the weight or the purity of the seed shipped. The sole breach of contract relied upon by plaintiff is that the seed did not test 80 per cent germination, and there was evidence, on the part of plaintiff, tending to show that it did not so test. Plaintiff introduced in evidence the telegrams and correspondence including the typewritten part of defendant's confirmation of sale, but not the printed part. The printed part was offered by the defendant but excluded by the court.
Defendant now contends that the court erred in so excluding it. The court also excluded the printed Non-Warranty Clause appearing on subsequent letters written by the defendant to the plaintiff. Defendant contends that the printed matter appearing in its confirmation of sale was a part of the final contract of sale and should have been admitted in evidence. We think this contention must be sustained. In their correspondence the parties finally agreed that the terms of the contract had not been all agreed upon until the letter written by defendant on November 15, 1927, and plaintiff's petition and its conduct of the trial proceeded upon such theory. In its petition all of the correspondence between the parties, including defendant's confirmation of sale, and ending with said letter, are copied in full, and shows that the contract sued upon is based upon these telegrams and correspondence. Plaintiff introduced in evidence the typewritten part of defendant's confirmation of sale on the theory that the part introduced constituted a part of the contract.
However, the error is not to be classified as material if the matter excluded does not effect, in a material way, the meaning to be given to the rest of the correspondence, including, of course, the typewritten portion of defendant's confirmation of sale. For the purpose of passing upon the point, we will consider the whole confirmation of sale, including the printed, as well as the typewritten, part.
Plaintiff contends that the telegrams and correspondence, including the typewritten part of defendant's confirmation of sale, having contained all of the essentials of an express warranty of 80 per cent germination, although the word "warranty" was not used, the court committed no material error in excluding the printed part. "To constitute an express warranty the term `warranty' need not be used; no technical set of words are required and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should so do." [24 R.C.L. 164.] The affirmation of a seller as to the quality or constituting a description of the kind of the chattel sold may constitute a warranty, if so intended, and relied upon by the buyer. [24 R.C.L., p. 168.] "It has been held that an affirmation by the seller that the seed sold is a certain kind of cabbage seed constitutes a warranty that the seed is of this kind and not cabbage seed of another kind, and the same has been held true as to seed sold as and for a particular kind of turnip seed, and where seed was sold as for rape seed, whereas it was in fact wild mustard seed." [24 R.C.L., p. 175.] However, affirmation of quality or kind do not necessarily, of themselves, constitute a warranty. [55 C.K., pp. 662, 742, 743.]
We think that, in this case, the correspondence between the parties, including the typewritten part of defendant's confirmation of sale, but excluding the printed disclaimer of warranty clauses, taken with all of the facts and circumstances, clearly would give rise to the inference, had it not been for such disclaimers of warranty, that an express warranty of the quality of the seed as to germination was intended by both parties thereto. [Hobdy et al. v. Siddens et al. (Ky.), 248 S.W. 505; Fruit Truck Ass'n v. Hartman, 146 Mo. App. 155; Cline v. Mock Knight, 150 Mo. App. 431; Moorehead Seed Co. v. Minn. Seed Co., 139 Minn. 11; Robinson v. Marteldes (Md.), 115 A. 757; Wolcott, Johnson v. Mount, 36 N.J.L. 262; White et al. v. Miller et al., 71 N.Y. 118; Hoffman v. Dixon, 105 Wise. 315, 319.]
In connection with its contention that the printed disclaimers of warranty should not be considered plaintiff cites authorities apparently holding that printed matter on a letterhead, billhead, and the like, and printed notations on the side or bottom thereof, will not be considered as any part thereof where the written matter therein consists, in whole or in part, of a contract. However, these cases, when closely examined, show that, taking the instrument as a whole, including the printed matter, the latter either was not intended to be a part of the contract or was inconsistent with the written portion. [Augusta Factory v. Mente Co., 132 Ga. 503; Summers v. Hubbard, 153 Ill. 102; Menz Lum. Co. v. McNeeley Co., 58 Wn. 223; Sturm v. Boker, 150 U.S. 312; Sturtevant v. Fireproof Film Co., 216 N.Y. 199; Olson v. Wabash Coal Co., 126 Ill. App. 253; Constantian v. Mercedes Benz Co. (Calif.), 39 P.2d 496; Ellis v. Stone (N.M.), 158 P. 480; Cohen v. Walworth, 158 N.Y.S. 1081; Denivelle Co. v. Leonard Keil, 140 N.Y.S. 150; Millhiser v. Erdmann, 103 N.C. 27; 12 Am. Juris., p. 780; 6 R.C.L., p. 848; 23 R.C.L., pp. 1329, 1330.] When it is inconsistent with the written part the rule is that the written and printed matter, not being harmonious, the former will prevail. However, there is no rule that the written matter shall take precedence over the printed matter in the absence of any ambiguity between the written and the printed part. The rule is well stated in 13 C.J., pp. 536, 537: "Where, as in the use of printed forms, a contract is partly printed and partly written, and there is a conflict between the printing and the writing, the writing will prevail. Handwriting will under the same rule prevail over typewriting, and typewriting over printing. But where the antagonism is merely apparent, the difference should be reconciled, if possible, by any reasonable interpretation. The rule that effect must be given, if possible, to all terms of a contract applies to instruments partly written and partly printed as well as to those wholly written or wholly printed.
"BILL HEADS AND LETTERHEADS. A printed billhead or letterhead cannot be allowed to control, to modify, or to alter the terms of a contract which is clearly expressed in writing below it. But when there is no conflict, the provisions not being inconsistent, the written provisions will not supersede the printed ones. So the printed heading on an order blank used by plaintiff may be referred to, to show in what capacity he contracted." [See, also, 1916D L.R.A., p. 1072; 6 R.C.L., pp. 847, 848; 12 Am. Juris., pp. 797, 798.]
However, in the case at bar we are not dealing with printed matter upon a letterhead, billhead, or the like, or a side or bottom printed notation, but printed matter contained in the body of the instrument in question, defendant's confirmation of sale, which printed matter was noted by the president of plaintiff upon its receipt. There can be no question in this case but that the printed matter, contained in the confirmation of sale, as well as the typewritten part thereof and all of the telegrams and correspondence passing between the parties, relating to the warranty, are to be considered and construed together.
"It is the imperative duty of courts to give effect, if possible, to all the terms of an agreement. The construction is to be made on a consideration of the whole instrument, and not on one or more clauses detached from the others; that this principle applies as well to instruments partly printed and partly written, as to those wholly printed or wholly written. Where the written and printed parts may be reconciled by any reasonable construction, as by regarding one as a qualification of the other, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent provisions. Although the written provision of a contract should prevail over one inconsistent with it, and which is a part of a printed form adopted for general use, yet only so far as it is apparent that the parties intended to modify or disregard the printed stipulations will the latter give way." [12 Am. Juris., p. 798.]
So far as we are able to ascertain the authorities are unanimous in holding that, where the word "warranty" or its equivalent does not appear in the contract, but there is some language appearing in it and it, and the surrounding circumstances, standing alone, might give rise to an inference merely that a warranty was intended, such inference cannot be drawn in the face of positive and explicit language in other parts of the contract showing that no warranty was given or intended, such as contained in the nonwarranty provisions in the defendant's confirmation of sale and the letter of November 15, 1927. [Davis v. Bertrand Seed Co. (Calif.), 271 P. 123; Leonard Seed Co. v. Crary Canning Co. (Wisc.), 132 N.W. 902; Seattle Seed Co. v. Fujimori (Wash.), 139 P. 866; Larson v. Inland Seed Co. (Wash.), 255 P. 919; Ross v. Northrup, King Co. (Wise.), 144 N.W. 1124; Reynolds Binding-Stevens Seed Co. v. Busby et al. (Okla.), 247 153 P. 410; Blizzard Bros. v. Growers Canning Co. (Iowa), 132 N.W. 66; Miller v. Germain Seed Plant Co. (Calif.), 222 P. 817.] "Parties may by an express provision in the contract exclude any warranty as to kind from being imported from words descriptive of the kind of seed sold." [24 R.C.L., p. 176.]
"The question of whether a representation is a warranty depends on its having been affirmed as a fact; it must have been understood by the parties as having that character, it must be positive and unequivocal and not merely a vague, ambiguous, and indefinite statement of the seller regarding the property. A representation of fact made to induce the sale, and to be relied on, and which is relied on by the buyer, is a warranty unless accompanied by an express statement that it is not so intended, at least if the representation is understood by the parties as an absolute assertion." (Italics ours.) [55 C.J., pp. 677, 678, 679, 680. See, also, 24 R.C.L., pp. 164, 165.] We are of the opinion that, under all of the circumstances, the statement by defendant that the seed would germinate 80 per cent was merely the expression of an opinion. [Davis v. Bertrand Seed Co., supra, l.c. 526.]
Among the cases cited in the briefs are Edgar v. Breck Son, 172 Mass. 581, and Moorehead Seed Co. v. Minn. Seed Co., 139 Minn. 11. In the Massachusetts case a contract of warranty had been entered into and, subsequently, a statement, on a printed billhead, was sent to the buyer with the seeds, stating that the seller did not warrant them. It was held that the printed matter on the billhead could have no effect unless it gave rise to the inference that the old contract had been rescinded and a new one constituted by mutual agreement, and such an inference raises a question of fact for the jury. [On the question of modification of contracts by conduct see 13 C.J., p. 591.] There is no such situation in the case at bar. No contract was entered into until after defendant's confirmation of sale had been received by plaintiff.
The Minnesota case, Moorehead Seed Co. v. Minnesota Seed Co., is based on Edgar v. Breck Sons, but the facts, in our opinion are different. In the Moorehead case there was evidence by the buyer, denied by the seller, tending to show an oral contract in which the seller guaranteed and warranted wheat seed as to germination. However, as the contract was oral, under the statute of frauds, until the acceptance of the seed, or payment of it, the contract was open to amendment. In the meantime the seller mailed to the buyer a confirmation of sale and it and the invoice and shipping tags, contained printed disclaimers of warranty. The court referred to the oral warranty as an express warranty and stated that if the warranty was actually made, a question of fact, it should be given effect irrespective of the printed disclaimers. The Minnesota case differs from the Massachusetts case, in that, in the former, the contract had not been consummated until after the time the disclaimers of warranty were made, while, in the latter, a final contract had been entered into and the seller sought to modify it by a disclaimer of warranty. Of course, the Minnesota case is not like ours. There it was held, in effect, that the oral part of a contract takes precedence over a printed part, if the two are inconsistent. It will be noted that in that case, unlike the one before us, the word "warranty" was used, which is a direct or positive word of warranty. Nothing is left to inference when such a word is used in this connection. In the case at bar, the contract was evidenced by writing in every detail and its construction was one for the court and not for a jury. [24 R.C.L., p. 165; Wolcott, Johnson v. Mount, supra; T.M. James Son v. Marion Fruit Jar, etc., 69 Mo. App. 207, 211; Union Serv. Co. v. Drug Co., 148 Mo. App. 327, 337; 13 C.J., pp. 788, 789; 55 C.J., p. 858; Reynolds v. Binding-Stevens Seed Co., supra.] In fact, plaintiff not only concedes, but insists, that the construction of the contract in the case at bar is one for the court exclusively.
However, plaintiff contends that the cases we have cited, in support of our decision that the non-warranty clause shall govern in this case, all involve implied warranties and not express warranties. Plaintiff admits that if the warranty to be inferred from that portion of the telegrams and correspondence, excluding the non-warranty clause is an implied warranty, then the non-warranty clause would overcome the implication of such a warranty. This, we think, when properly analyzed, constitutes an admission that plaintiff is not entitled to recover in this case. We note that, in discussing these cases, plaintiff quotes from some of them where the words "inference" of warranty is used and plaintiff is of the opinion that a warranty arising from an inference of fact is the same as an implied warranty. However, plaintiff quotes the following from International Shoe Co. v. Lipschitz, 72 S.W.2d 122, 125: "It is true that he did not use the term `warranty' in his pleading, but such omission avails plaintiff nothing in its present contention. To constitute the statement or averment of an express warranty, no technical or specific form of language is required, but the existence of the warranty may be inferred from the affirmation of a fact which has induced the purchase, and on which the purchaser was intended to and did rely." (Italics ours.)
While, it is true, that some of these cases refer to the warranties therein considered as implied warranties, as a matter of fact, they were not, strictly speaking, implied warranties and the word "implied" was used in a loose, and not a technical, sense. Plaintiff is correct in saying that the warranty upon which it rests its claim in this case is an express warranty yet the word "warranty" or its equivalent, is not used, but the words used, if we exclude the disclaimers, taken with the surrounding facts and circumstances, raise no more than inferences or implications of warranty. In some of the cases it is said that the words of description relating to the kind or representation of quality, in the seed sold, give rise to an implied warranty, yet, the writers of the opinions were not discussing, technically, implied warranties, but express warranties, gleaned from the words used and the surrounding circumstances, and arrived at by inference. The character of warranty we are now dealing with, or an express warranty, not an implied warranty, is made manifest when we remember that express warranties are based upon the intention of the parties, while, implied warranties are obligations which the law raises upon principles foreign to the actual contract. Implied, unlike express, warranties are arrived at by operation of law and conclusions announced by the court upon established facts. For the sake of convenience, merely, such an obligation (an implied warranty) is permitted to be enforced under the form of a contract. "In some cases where the buyer relies on affirmation by the seller without the use of technical words of warranty to found his claim of a warranty of qualify or condition, the courts have inadvertently spoken of the case as one of implied warranty; it is evident, however, that this is not properly one of implied warranty but of express warranty; and this class of cases is considered in the treatment of express warranties." [24 R.C.L., p. 178.] Ruling Case Law treats affirmations in the sale of seeds, by description as to kind, as constituting express warranties. [24 R.C.L., p. 175.] Ordinarily an implied warranty cannot exist where there is express warranty. However, this is not always true. [See Alvin Fruit Truck Assn v. Hartman, 146 Mo. App. 155; where also a warranty by mere affirmation was held to be an express warranty.] An implied warranty arises when no technical word of warranty may be used, and no affirmation or representation concerning the quality of the article sold, but the law, in a proper case, implies a warranty, such as that seeds are fertile and are reasonably free from impurities, noxious weed seeds and the like. [See 24 R.C.L., p. 199.] Of course, there can be no implied warranty where the sale is attendant with a non-warranty provision, such as involved in the case at bar and, as implied warranties are based wholly upon implications of law, as distinguished from inferences or implications of fact, it is necessary, in any case, before it can be decided whether actually there is an implied warranty, to find out the meaning of the contract. So the matter all goes back to the question of interpreting the terms of the contract itself.
Being of the opinion that, construing the telegrams and correspondence together, including the whole of defendant's confirmation of sale, no warranty of any kind was intended, we conclude that there was material error in the action of the court in excluding the printed matter in question constituting a disclaimer of warranty. When a point of this kind is made, and sustained, ordinarily, it results merely in remanding the cause for another trial but, it appearing, as a matter of law, that plaintiff cannot recover in this action upon any theory, the judgment should be reversed, and it is so ordered. [White v. Kentling, 134 S.W.2d 39.]
All concur.