The opinion
John A. Fogleman, Justice. I concur. I agree with the result of that part of the majority opinion which holds that the complaint was not demurrable because appellee bought plants from Jones rather than the tomato seed sold by appellant. I would not base that holding on the statute eliminating lack of privity as a defense, however, nor would I hold that the warranty of fitness and variety extends to a remote purchaser of tomato plants which are grown from the seed for commercial purposes, as a matter of law.
I think, for example, that it is necessary that this remote purchaser buy the seed in reliance on the warranties. Under the liberal construction that we give pleadings in testing them on demurrer, I feel that the allegations are broad enough to suggest that appellant did rely on the warranties, and to raise a fact issue as to the extension of warranties.
The statute eliminating the defense of privity [Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967)] is actually an amendment of the Uniform Commercial Code as adopted in Arkansas. It eliminates lack of privity as a defense by the manufacturer or seller of goods. The word “goods” is defined [Ark. Stat. Ann. § 85-2-105 ( Add. 1961 )] to mean all things which are movable at tlie time of identification to tlie contract for sale other than money in which the price is to be paid, investment securities and tilings in action. While the definition also includes the unborn young of animals, and growing crops, it is not broad enough to include something changed in form from a seed to a plant.
Yet, I believe that the principles of the common law discussed in Buckbee v. P. Hohenndel, Jr., Co., 224 F. 14 , (7th Fir. 1915) would support appellee’s cause of action here. It was held in that case that:
“Where seed is sold to a dealer under a warranty that it is of a special variety, and the dealer in turn sends it to a grower, the warranty is carried forward to the ultimate purchaser, if it appears that such understanding was part of the first sale, and the measure of damages for breach of warranty is the difference in market value between the crop produced and such crop as the specified variety of seed would have produced under like conditions.” (Quoting syllabus.)
In so holding, the court used the following language :
“* * * The seller who gathers and packs the seed for sale is necessarily required to know its variety for the intended use by growers, and his warranty thereof, whether directly made to the grower or to the intermediate dealer for resale to growers, may justly render him chargeable for the damages suffered by the growers, when the circumstances of his sale authorize the inference that the warranty was to be thus carried forward to the growers. Indemnity for misrepresentations so carried forward is within the contemplation of his contract of sale to the dealer, and allowance thereof is not open to the objection of remote or speculative damages.”
It avo aid not be logical to say appellee had a cause of action against Jones that Jones might assert against Brown Seed Store and BroAvn Seed Store against appellant but that appellee could not recover from appellant. In effect, avo avoided such a circuity of action in Ford Motor Co. v. Tritt, 244 Ark. 883 , 430 S.W. 2d 778 . I think that it should also be rejected under the facts in this c;ase, but I do not think that the common laAV rule could be further extended in the distributive chain, that is, I do not believe that a supermarket or canning factory Avhicli purchased the tomatoes from appellee should be permitted to recover from appellant.
Jones, J., joins in this concurrence.