Nunes Turfgrass Inc. v. Vaughan-Jacklin Seed Co.5/9/1988
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
No. F007421
1988.CA.40782 ; 200 Cal. App. 3d 1518; 246 Cal. Rptr. 823
May 9, 1988
NUNES TURFGRASS, INC., PLAINTIFF AND APPELLANT,
v.
VAUGHAN-JACKLIN SEED COMPANY, INC., DEFENDANT AND APPELLANT
Superior Court of Stanislaus County, No. 196702, Hugh Rose III, Judge.
Titchell, Maltzman, Mark, Bass, Ohleyer & Mishel, Thomas M. Bruen and Alan D. Miller for Plaintiff and Appellant.
Trimbur, Davis, Clark & Jacobson, Kevin L. Clark and Bradley L. Young for Defendant and Appellant.
Opinion by Martin, Acting P. J., with Hamlin and Stone (w. A.), JJ., concurring.
Martin
Plaintiff sod grower and defendant seed company both appeal from a judgment in a breach of warranty/product liability action arising from the sale of contaminated ryegrass seed.
Facts
In 1981, plaintiff, Nunes Turfgrass, Inc., was a California corporation based in Modesto with sales outlets in seven other California cities. Plaintiff
had engaged in business since June 1962 and in 1981 represented itself as the largest independent sod grower in California. Defendant Vaughan-Jacklin Seed Company, Inc., was a corporate grower, developer, and commercial retailer of grass seed based in Post Falls, Idaho. At the time of trial, defendant had been engaged in business for 50 years and was one of the largest seed companies in the world. Plaintiff and defendant conducted business with one another beginning in the early or mid-1960's and continuing until at least 1981. Defendant sold plaintiff seed for its sod fields and for a line of seed mixes sold under the Nunes name to landscapers, golf courses, and the general public.
Prior to 1980, plaintiff produced sods consisting of bluegrass, bluegrass blend, and bermuda. In 1980, plaintiff's president, John Nunes, Jr., perceived customer demand for a hardier, more drought-resistant bluegrass-perennial ryegrass blend. Nunes contacted Doyle Jacklin, defendant's sales/marketing manager, explained the need, and asked him to recommend a variety of perennial ryegrass suitable for overseeding fields previously planted with bluegrass. Jacklin researched the request and recommended a new variety, Jackpot perennial ryegrass. John Nunes relied on the recommendation based on his longstanding working relationship with Doyle Jacklin and defendant.
In August or September 1981, plaintiff's employee, Greg Nunes, ordered 8,000 pounds of the new Jackpot variety from defendant's employee, Grant Jorgensen. In September and October, defendant delivered Jackpot seed from three different lots to plaintiff. Plaintiff then overseeded 56 acres of bluegrass sod with the Jackpot seed. Several weeks after the overseeding, plaintiff's employees noticed large, irregular clumps of off-colored ryegrass appearing in the fields. Plaintiff contacted defendant and forwarded a sample of the contaminant plants. Defendant determined the fields were infested with an annual ryegrass which rendered them unsuitable for sod production. Defendant also recommended extensive corrective actions to eliminate as much of the contaminant grass as possible. Defendant's director of research, Dr. Leah Brilman, visited the fields and then reported to defendant's president, Duane Jacklin. In a report transmitted to plaintiff, Dr. Brilman stated: "The appearance of the annual rye grass in an unmowed
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