Appeal from the United States District District Court for the Southern District of Indiana, New Albany Division. No. 79-C-84 -- S. Hugh Dillin, Judge .
Before Cummings and Cudahy, Circuit Judges, and Bonsal, Senior District Judge.*fn*
This is a diversity suit for breach of express and implied warranties in connection with the sale of tomato seeds. In December 1974, plaintiff, an Indiana tomato farmer, bought a quantity of Heinz 1439 VF tomato seed from defendant Ferry-Morse Company, which had bought the seed from defendants Thomas A. Castle Farms, Inc. and A. L. Castle, Inc.*fn1 Heinz 1439 VF seed is described in Ferry-Morse's brochures as producing a particular kind of tomato. Plaintiff took delivery of the seed in March 1975 in containers labelled Heinz 1439 VF variety. At harvest time in September 1975, plaintiff allegedly discovered that the fruit produced from the seed was not Heinz 1439 VF variety.
On June 20, 1979, plaintiff commenced this action seeking damages of $150,000. Defendants moved for summary judgment on the ground that the claims were time-barred under the Indiana Uniform Commercial Code, which provides that an action for breach of warranty in connection with the sale of goods must be brought within four years of the date of delivery even if the buyer had no knowledge of the breach at the time of delivery unless the warranty explictly extends to future performance. (Ind.Code, § 26-1-2-725; emphasis supplied).
District Judge Dillin concluded that the sale of tomato seeds is a sale of goods as defined in Section 26-1-2-105(1) of the Indiana version of the Uniform Commercial Code, that the express warranties concerning the type of fruit to be produced did not explicitly extend to future performance, that implied warranties by definition cannot explicitly extend to future performance, and that the four-year statute of limitations therefore began to run when plaintiff took delivery of the seed in March 1975. Accordingly, he held the suit time-barred, granted defendants' motion for summary judgment, and dismissed the cause with prejudice. Plaintiff appeals.
Our initial sympathy for plaintiff is tempered by the realization that he had four years from March 1975 in which to file suit. The tardiness in so doing rests with him or his counsel. We are wholly in accord with the reasoning and conclusions set forth in Judge Dillin's opinion, which we adopt and attach hereto.*fn2 For the reasons stated therein, the judgment is affirmed.
BONSAL, District Judge, dissenting.
According to the decision of the district court dated May 19, 1980:
"Plaintiff ordered from defendants a particular type of tomato seed identified as Heinz 1439 VF seed. In defendants' brochures, Heinz 1439 VF seed is listed as producing a fruit of certain size, maturity, shape, firmness, and color. In mid-March 1975, plaintiff received packages of seed from defendants that were labeled Heinz 1439 VF seed. Plaintiff alleges that the seed he received from defendants produced smaller fruit with thicker skins and of poorer quality than the fruit produced by Heinz 1439 VF seed."
The district court concluded that the warranties made by the defendants concerning the type of tomato, although express, did not explicitly extend to future performance. However, plaintiff could not determine whether or not the tomatoes conformed to these express warranties until the end of the growing season, when they were ready for harvest. Assuming that plaintiff's allegations are true, as we must, it is quite clear that the tomatoes at harvest did not conform in any way to the warranties.
The district court relied on cases which did not involve agricultural products; rather, most involved industrial machinery, where compliance with the warranties could be determined at the time of purchase. Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978); Wilson v. Massey-Ferguson, Inc., 21 Ill.App.3d 867, 315 N.E.2d 580 (Ill.App.1974). Here, plaintiff had no way of determining whether or not there was a breach of warranty when he purchased the seeds.
It seems to me that the presentation in the brochure describes the tomatoes at the time of harvest and therefore the warranties explicitly extend to that time. The California courts, prior to the adoption of the Uniform Commercial Code, have held that such express warranties concerning agricultural goods extend to the time of harvest. Shearer v. Park Nursery Co., 103 Cal. 415, 37 P. 412 (1894); Firth v. Richter, 49 Cal.App. 545, 196 P. 277 (1920); Ackerman v. A. Levy and J. Zentner Co., 7 Cal.App.2d 23, 45 P.2d 386 (1935). I have found no agricultural cases decided since the adoption of the Code which hold otherwise.
For the foregoing reasons, I believe that the relevant statute of limitations commenced to run at the time of harvest, and not at the time of the delivery of the seed. I would therefore reverse the holding of the district court ...