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VANDENBERG v. SITER ET AL. (11/12/64)

decided: November 12, 1964.

VANDENBERG
v.
SITER ET AL., APPELLANTS



Appeals from judgments of Court of Common Pleas of Delaware County, in case of Q. Vandenberg & Sons, N. V. v. Albert S. Siter and Bartlett Siter, individually and trading as Albert Siter & Son.

COUNSEL

Robert F. Jackson, for appellants.

Samuel Lichtenfeld, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 204 Pa. Super. Page 393]

The plaintiff, a grower and dealer in Holland, sued the defendants for the balance of the purchase price of certain tulip and hyacinth bulbs. The defendants counterclaimed for $9,036.97 averring breach of an express warranty that the bulbs were sound and healthy at

[ 204 Pa. Super. Page 394]

    the time of the shipment and implied warranties that they were merchantable and fit for the purpose for which they were sold.

The contract contained the following clause of warranty: "The seller warrants the goods to be sound and healthy at the time of shipment but does not otherwise warrant flowering or other planting, growing or forcing results . . . All claims hereunder shall be deemed waived unless presented within eight (8) days after receipt of the goods."

The trial judge excluded or struck from the record all testimony offered by the defendants to show breach of warranty, so far as it related to the condition of the bulbs more than eight days after delivery to the defendants, including testimony that the bulbs did not flower properly, that while they appeared in good condition on the day after delivery upon inspection by the defendants, one month later some brown specks were discovered, that Mr. Rotteveel, the expert, was then called in to examine them. It also included testimony by the expert that when he examined the bulbs in the two cases in which the specks were discovered, he found that the bulbs were grown beyond their capacity in Holland, so that they would dry up and "destroy the usefulness of the bulb"; that they were not merchantable, that some of the tulip bulbs were "not worth planting"; that he advised the defendants not to plant them, and the defendants' testimony that these two cases were destroyed. As to the delay in giving notice of the breach, the defendants offered testimony that the defective character of the bulbs could not be discovered until flowering time some months after October 18, 1960, the delivery date, together with testimony by the expert that it could not be discovered except by cutting them open, and that when he cut some open about the middle of November he discovered this condition, but it would not be observable a month earlier

[ 204 Pa. Super. Page 395]

    to the extent that it would be later on since it develops as the season progresses; that it was the custom of the trade to inspect the Easter flowering and that Anthony Vandenberg, on behalf of the plaintiff, did make such inspection thirty-five days before Easter, and that defendants did not learn of the defect until the plants were taken to the greenhouse and uncovered about thirty-five to forty days prior to Easter in the case of the tulips, and about twelve days to three weeks before Easter in the case of the hyacinths.

In making these rulings, the court took the position that no testimony as to what happened more than eight days after the delivery date was admissible even though it related to a condition existing at the time of shipment but not discoverable until later. The effect of these rulings was to eliminate the evidence in support of the defence ...


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