Appeal by plaintiffs and third party defendant from Peele, Judge. Judgment dated 29 October 1980 entered in District Court, Chatham County. Heard in the Court of Appeals 16 september 1981.
Martin (Robert M.), Judge. Judge Martin (Harry C.) concurs. Judge Becton concurs in the results.
Appellants appeal from the court's allowance of defendants' counterclaim. The following facts found by the trial judge are not in dispute: On 27 June 1978 defendants executed a note and security agreement in the amount of $4,134.17 to plaintiff for the 30 May 1978 purchase of ten bags of seed corn and other farming supplies. No payments were made on the note which became in default. The seed corn was produced, prepackaged, prelabeled and delivered by third party defendant Pioneer Hi-Bred International, Inc. to plaintiff Central Carolina Farmers, Inc. for sale. Each bag of seed corn had attached to it, either by sewing or by staples, a tag which specified that the corn was F15-E referred to the size of the seed corn and its shape as a round or flat kernel. The reverse side of the tags contained suggested recommendations for the proper planter plates to be used in planting the seed corn in order that one seed would drop at the desired distance from the previously dropped dropped seed. The label stated that these recommendations were suggestions only and the purchaser should check his planter. Relying on the information contained on the tags, defendants purchased two planter plates which he delivered to William Beavers who was to plant the corn. Beavers installed the two plates on his planter along with two plates of his own. Defendant Cone Hilliard instructed Beavers to plant the corn eight to ten inches apart and he witnessed a test run by Beavers on hard ground at which time the corn was dropping from the planter approximately eight to ten inches apart. Spacing of the seed corn depends upon the seed plates, the setting of the planter's sprocket and the speed of the tractor pulling the planter. After viewing the test run, Hilliard left the field which was then planted by Beavers using the purchased seed corn for 39 1/2 acres. The corn rows were planted 30 inches apart. The corn germinated adequately but upon inspection was planted six inches apart in each row rather than the desired eight to ten inches apart. When the corn was harvested by the defendants, it was discovered that the yield was forty-five bushels per acre at a time when the average yield in the county was seventy-five bushels.
The court's last finding of fact, that the subject bags of seed corn were mistagged by third party defendant, was excepted to by appellants.
Although the parties stipulated and the trial judge found that the plaintiffs had no duty to the defendants or the third party defendant to examine or inspect the contents of the prepackaged and prelabeled bags of seed corn, this in itself would not absolve the plaintiffs from liability for the sale of mislabeled bags of corn. Under the North Carolina Seed Law, G.S. 106-277 to G.S. 106-277.29, the immediate vendor of any lot of seed which is sold is made responsible for the presence of labels which state, among other things, the name of kind and variety of seed. G.S. 106-277.7 and G.S. 106-277.8. In a factual situation similar to the case at hand, where prepackaged and prelabeled seed had been purchased from a reputable dealer by the immediate vendor, the Court in Gore v. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971), held that the sale of mislabeled seed was not negligence under the circumstances but was a violation of the North Carolina Seed Law. The court then further held that in addition to the penalties imposed by this law, the immediate vendor could be held liable for breach of contract with recovery of full damages by the plaintiff.*fn1
Having resolved that plaintiffs, if found to be immediate vendors of mislabeled seed corn, could be held liable for damages suffered by the purchasers of the seed, we now must determine the question of the sufficiency of the evidence to support the court's finding that the seed corn was in fact mislabeled. The disputed finding is as follows:
16. That the subject bags of seed corn were mistagged by the Third Party defendant in that the seed was a smaller size than represented resulting in the planting of the corn too close together and too dense in the subject acreage causing a reduced yield of 45 bushels per acre instead of the county average of 75 bushels per acre thus resulting in damage to the defendants in the above of Two Thousand Eight Hundred Twenty and 00/100 ($2,820.00) Dollars, said amount being stipulated by the parties.
The finding by the court, sitting as judge and jury, is conclusive on appeal if supported by any substantial evidence. However, any inference made must stand upon clear and direct evidence and not upon some other inference. Carolina Milk Producers Association Co-Operative, Inc. v. Melville Dairy, Inc., 255 N.C. 1, 120 S.E.2d 548 (1961). None of the subject seed corn or any analysis of the corn was ever introduced into evidence. Therefore other facts must be present to support the court's inference that the seed corn was planted too close together, resulting in a reduced yield, because the seed sold to defendants was less than the size it was represented to be on the label, i.e., a different smaller variety of corn.
A careful analysis of the evidence fails to support this finding. Defendants' argument is that, excluding other miscellaneous factors such as weather, fertilization, or soil conditions, their poor yield of corn was a consequence of the seed being planted too close together. They contend that, as a direct result of the purchased seed corn being a smaller kernel than the variety specified, it passed too rapidly through the planter plates recommended on the reverse of the label, so that the corn was planted in six inch intervals rather than eight to ten inch intervals. The evidence presented in the record does not support their hypothesis. Testimony concerning the spacing of seed corn substantiated that the distance between the dropping of corn is determined in some degree by the planter plate, the setting of the planter and the speed at which the planter is driven. If corn that is too small for the planter plate is mistakenly placed in the planter, the result will be seeds dropping out two at a time very close together in erratic spacings, not in regular one-seed spacings of a different length. Defendants' contention that, because the planter plates purchased were oversized for the "mislabeled" seed corn, their desired planting intervals became uniformly shorter by two to four inches is not supported by the evidence. We find insufficient evidence to support the court's finding that the defendants' reduced yield was due to the sale by plaintiffs of a smaller corn mislabeled by third party defendant.
Since the court's conclusion, that defendants were entitled to recover damages suffered due to the mislabeling of the seed corn, is not based upon facts supported by competent ...