“It is clear that under the [Uniform Commercial] Code, delivery does not in and of itself constitute acceptance.”
How later courts described this case
- “It is clear that under the [Uniform Commercial] Code, delivery does not in and of itself constitute acceptance.”
- soy beans properly rejected one month after delivery; defect could not be identified prior to testing
Written by the judges who cited it.
The opinion
Robert H. Dudley, Justice, dissenting. I respectfully dissent from the majority holding that the appellant rejected nonconforming goods.
The appellee, E. R. Coleman, warranted these beans to have a germination level of at least 80 percent. On January 17, 1978, tests by the Arkansas State Plant Board registered 81 percent germination. On February 14, 1978, the Arkansas State Plant Board found 82 percent germination.
Appellant, Jacob Hartz Seed Company, made the same warranty when it resold these beans to a Georgia planter.
On May 15, 1978, the Georgia authorities found a germination level of only 67 percent. On May 31, upon retesting in Georgia, only 65 percent germination was found.
The appellee then went to Georgia, picked up the beans and had them retested by the Arkansas State. Plant Board. On July 5, the Arkansas finding was 81 percent germination. On July 11, federal tests found 88 percent germination using the Arkansas sample. On August 2, federal tests of the Georgia samples showed a germination count of 77 percent.
The tests administered in Georgia reached an erroneous result, as the dead beans did not come back to life upon reentering Arkansas. One witness explained that probably this happened as a result of a seed borne pathogen, which died after a period in storage. The Georgia authorities could have determined if this was the situation by using a second type of test, but they did not do so.
The trial court found the Georgia tests were in error. In reviewing a finding of fact of the trial court this court should consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. Ark. R. Civ. P. 52; Taylor v. Richardson Const. Co., 266 Ark. 447 , 585 S.W. 2d 934 (1979). There is ample evidence to sustain the trial court. Hence, the evidence should be viewed as reflecting that the beans always had at least 80 percent germination.
The appellee warranted 80 percent germination. There were no nonconforming beans delivered which would authorize rejection under the Commercial Code, Ark. Stat. Ann. § 85-2-601 ( Add. 1961 ). The seller did not warrant that the plant board of Georgia would not make an error.
Neither of these parties is at fault and both acted in good faith. If there was frustration of a contract, it was frustration of the contract of resale between the appellant and the Georgia purchaser. The appellee sold no beans in Georgia and should not suffer the loss caused by the faulty Georgia test results.
I am authorized to state that Chief Justice Adkisson and Mr. Justice Purtle join in this dissent.