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FRANK ZICARI v. JOSEPH HARRIS CO. (10/30/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1969.NY.43352 <http://www.versuslaw.com>; 304 N.Y.S.2d 918; 33 A.D.2d 17 October 30, 1969 FRANK ZICARI, DOING BUSINESS AS J. ZICARI PRODUCE CO., ET AL., APPELLANTS,v.JOSEPH HARRIS CO., INC., RESPONDENT Appeal from an order of the Supreme Court at Special Term (Jacob Ark, J.), entered July 10, 1968 in Monroe County, which granted in part and denied in part motions and cross motions for summary judgment. Saperston, Wiltse, Duke, Day & Wilson (Lawrence J. Gallick of counsel), for appellants. Harris, Beach, Keating, Wilcox, Dale & Linowitz (Edward R. Macomber of counsel), for respondent. Marsh, J. P. Gabrielli, Moule, Bastow and Henry, JJ., concur. Author: Marsh


Appeal from an order of the Supreme Court at Special Term (Jacob Ark, J.), entered July 10, 1968 in Monroe County, which granted in part and denied in part motions and cross motions for summary judgment.

Marsh, J. P. Gabrielli, Moule, Bastow and Henry, JJ., concur.

Author: Marsh

 Plaintiff Zicari in his complaint alleges that he bought some cabbage seed known as 255 Danish Ballhead Harris Special Strain from defendant Joseph Harris Co., Inc., located at Moreton Farm, Rochester, New York. He used the seed to plant about 70 acres of his farm land. When the 1966 cabbage crop grown from this seed matured it was found the cabbage plants were worthless, being diseased with a fungus known as Phoma Lingam (Tode) Desmazieres or Blackleg. He claimed damages in the amount of $77,000 for the 1966 cabbage crop and $100,000 in damages for inability to supply customers with cabbage after the 1966 growing season. The first cause of action seeks recovery based upon defendant's negligence in failing properly to treat the cabbage seed before sale so as to eliminate the Blackleg fungus. Zicari's second cause of action seeks recovery based upon negligent misrepresentation that the cabbage seed had been properly treated so as to eliminate the Blackleg fungus. Zicari's third cause of action is based upon the implied warranty of fitness for a particular purpose for which defendant knew plaintiff was purchasing the seed. Zicari's fourth cause of action is based upon the implied warranty that the seed was of merchantable quality.

Plaintiffs Emilio, Gilbert and Elmer DiLodovico obtained their seed from plaintiff Zicari and allege basically the same four causes of action. Their position as undisclosed principals of their agent Zicari is conceded and affords them the same legal status in their relationship to defendant as Zicari. Plaintiff Frank Swercznski also alleges essentially the same causes of action as the other plaintiffs except that like Zicari he purchased his own seed directly from defendant.

Plaintiffs appeal from the court's disposition of the various motions and cross motions for summary judgment on the third cause of action (warranty of fitness) and the fourth cause of action (warranty of merchantability). The first two causes of action based on negligence and negligent misrepresentation are not involved in this appeal.

Special Term dismissed the third cause of action posited on warranty of fitness holding that defendant had contractually excluded the warranty of fitness in its order forms. On its order forms there appears as the only print in paragraph form just before the space for writing the order the following:

"All orders subject to the following conditions of sale: Joseph Harris Co., Inc., warrants that seed, plants or bulbs sold will be labeled on the containers and that they will conform to the label description as required under State and Federal Seed Laws. Our liability on this warranty is limited in amount to the purchase price of the seeds, plants, or bulbs.

"We make no other or further warranty, express or implied, including any other or further warranty for fitness of purpose. Our liability for (1) breach of contract or (2) mistake or omission in connection with the seeds, plants or bulbs, shall similarly be limited in amount to the purchase price.

"No liability hereunder shall be enforceable unless the buyer or user reports to the seller within a reasonable period (not to exceed 30 days) after discovery, any condition that might lead to a complaint."

Both plaintiffs Zicari and Swercznski signed purchase orders containing this language. There are some factual disputes with respect to the Zicari order as Zicari claims his original order was for 75 pounds of cabbage seed but was modified subsequently to 19 pounds of Australian cabbage seed. Zicari also claims an oral warranty that defendant would stand behind the Australian seed when Zicari inquired whether it might not be infected with Blackleg.

Subdivision (2) of section 2-316 of the Uniform Commercial Code provides: "Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that 'There are no warranties which extend beyond the description on the face hereof'".

Defendant's warranty of fitness exclusion is written into its printed purchase orders which are signed by the purchasers including plaintiffs. Conspicuous is defined in subdivision (10) of section 1-201: "A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Nonnegotiable Bill of Lading) is conspicuous. Language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color. But in a telegram any stated term is 'conspicuous'. Whether a term or clause is 'conspicuous' or not is for decision by the court".

In the Official Comment to section 1-201 it states: "10 'Conspicuous'. New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it."

It would appear that the condition of sale on plaintiffs' order blanks meets the requirements of subdivision (2) of section 2-316 of the Uniform Commercial Code with respect to exclusion of the warranty of fitness even to the extent of specifying the warranty of ...


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