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Maine Farmers Exchange v. McGillicuddy
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
DECISION:	1997 ME 153
Docket:	Aro-96-662
Submitted
on Briefs:	June 23, 1997
Decided:	July 18, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.  
MAINE FARMERS EXCHANGE v. JOSEPH C. McGILLICUDDY et al.


GLASSMAN, J.
  
	[¶1]  Joseph C. McGillicuddy and Donald J. McGillicuddy appeal from
the judgment entered in the Superior Court (Aroostook County, Pierson, J.)
in favor of Maine Farmers Exchange's (MFX), following a jury waived trial, on
its complaint seeking damages for the McGillicuddys' alleged breach of
warranty of the contract between the parties.  The McGillicuddys contend
the court erred by finding that they breached both the express and implied
warranties of their contract to sell seed potatoes to MFX,{1} by its assessment
of damages, and by determining that Joseph McGillicuddy and Donald
McGillicuddy were jointly and severally liable for the damage suffered by
MFX.  We disagree and affirm the judgment.  
	[¶2]  The record discloses the following facts:  MFX is in the business
of buying potatoes from local growers and selling them to others.  On
November 14, 1991, MFX entered into a contract with Joseph McGillicuddy
to purchase 400 weight Norwis Foundation Generation #1 certified seed
potatoes for resale to Loy A. Sawyer of Mineral Point, Pennsylvania.  Joseph
McGillicuddy was aware that the potatoes were for resale and that the
potatoes were expressly warranted to be seed potatoes as ordered.  The
memorandum of sale executed by the parties also contained an express
warranty that provided as follows: "Seller guarantees this contract grade at
destination and agrees to comply with seed potato regulations of state of
destination." Although Joseph McGillicuddy signed the contract, the
potatoes were furnished by Donald McGillicuddy in April 1992.  
	[¶3] Sawyer, who has farmed for twenty-six years and raises Norwis
potatoes, noticed problems during the growing season that included
excessive vines and difficulty in killing the vines for harvest.  He also noticed
that the potato blossoms differed from his normal crop, that the crop
matured very late, and that the potato skins cracked shortly after exposure
to the air.  
	[¶4] Sawyer notified MFX of the difference in the color of the
blossoms, and later notified MFX that the vines were harder to kill and the
harvested potatoes had large air cracks.  Peter LaVasseur, an employee of
MFX, went to Pennsylvania in October of 1992 to inspect the potatoes.  He
determined that the potatoes were comprised of two varieties, Allegany and
Norwis, and were unmarketable.  This assessment was confirmed by Ronald
Hostetler, an agricultural extension agent with the Cooperative Extension
Service at Pennsylvania State University, in March of 1993.  MFX was
unsuccessful in attempting to help Sawyer market his crop.  Lavasseur
returned to Maine with two fifty-pound bags and two twenty-pound bags of
potatoes and left them with Donald McGillicuddy, who confirmed that the
potatoes were bad.  
	[¶5] MFX filed the present complaint on March 17, 1994, seeking
damages from the McGillicuddys in the amount it had paid Sawyer on his
claim against MFX.  Although Donald McGillicuddy denied responsibility for
intermixing the two varieties and blamed Sawyer's crop failure on improper
farming methods, he testified at the trial that his own crop, planted from
the same kind of seed potatoes sold to Sawyer, failed to pass a state
inspection on July 22, 1992, because of an unacceptable mix of potatoes. 
The trial court found, inter alia, that: Joseph McGillicuddy had signed the
contract with MFX; he does the selling for his father, Donald McGillicuddy;
the seed sold to MFX, and resold to Sawyer, contained a mixture of Norwis
and Allegany; and that MFX incurred a loss of $34,948.13 as a result of the
McGillicuddys' breach of both express and implied warranties of their
agreement.  From the joint and several judgment entered against the
McGillicuddys, they appeal.  
I.
	[¶6] The McGillicuddys contend that the court erred by entering a
judgment in favor of MFX.  They argue, pursuant to 11 M.R.S.A. § 2-
316(3)(b), that MFX's inspection of the potatoes at the time of shipment
obviated all warranties.  We disagree.  
	[¶7] Express warranties by the seller pursuant to 11 M.R.S.A. § 2-313
(1995) are created as follows:
 
(a) Any affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis
of the bargain creates an express warranty that the goods shall
conform to the affirmation or promise.  

(b) Any description of the goods which is made part of the basis
of the bargain creates an express warranty that the goods shall
conform to the description.  

Comments to this provision of the code suggest that the requirement that
the affirmation become part of the "basis of the bargain" is meant to
continue the uniform sales act requirement that the purchaser must show
reliance on the affirmation in order to make out a cause of action for a
breach of warranty.  Id. (comment) (citing R.S. 1954, c. 185 § 12) (1954)). 
Whether certain language creates an express warranty and whether that
warranty was breached are factual findings that will not be set aside unless
they are "clearly erroneous."  Faulkingham v. Seacoast Subaru, Inc., 577 A.2d
772 (Me. 1990); Cuthbertson v. Clark Equipment Co., 448 A.2d 315 (Me.
1982).  We will "reverse a finding of fact for 'clear error' only when there is
no competent evidence in the record to support the finding." H.E. Sargent,
Inc. v. Town of Wells, 676 A.2d 920, 923 (Me. 1996) (citation omitted).  
	[¶8] The evidence at the trial established that MFX informed Joseph
McGillicuddy both of the particular kind of seed desired and the particular
purpose for which the seed was required.  The seed and the variety was a
substantial part of the bargain.  The memorandum of sale is sufficiently
direct and positive to create an affirmation of fact that the seed potatoes
were to be Norwis potatoes.  The evidence also demonstrates that the potato
seed sold to MFX, and resold to Sawyer, contained a mixture of Allegany and
Norwis potatoes.  Accordingly, the trial court's findings that an express
warranty existed and that the McGillicuddys breached that warranty was not
clear error.  Cuthbertson v. Clark Equipment Co., 448 A.2d 315, 320 (Me.
1982); Henderson v. Berce, 142 Me. 242, 252, 50 A.2d 45, 50 (1946).  
	[¶9] The McGillicuddys' reliance on 11 M.R.S.A. § 2-316(3)(b){2} to
support their contention that no warranties survived the sale is misplaced. 
Pursuant to that section, an inspection before acceptance would not exclude
an express warranty.  Contrary to the McGillicuddys' contention, the court
did not err by finding that their breach of warranty was the proximate cause
of Sawyer's loss.  Sawyer testified that 85% of his crop were Allegany
potatoes and were so badly damaged as to be unusable.  The Allegany
potatoes were unusable because Sawyer harvested them earlier than he
should have, mistakenly believing that they were Norwis potatoes.  The
court's finding that the McGillicuddys' shipment of a varietal mixture was
the proximate cause of Sawyer's damages is not clearly erroneous. 
Greenstreet v. Brown, 623 A.2d 1270, 1272 (Me. 1993) (citation omitted).  
II.
	[¶10] The McGillicuddys next contend that the court erred by finding
the McGillicuddys jointly and severally liable.  They contend that MFX should
have been aware that Joseph McGillicuddy was acting as an agent for Donald
McGillicuddy.  We disagree.  In Estate of Saliba v. Dunning, 682 A.2d 224,
226 (Me. 1996), we stated "[a]n agent who makes a contract for an
undisclosed principal or a partially disclosed principal will be liable as a
party to the contract.  Hence "[i]n order for an agent to avoid personal
liability on a contract negotiated in his principal's behalf, he must disclose
not only that he is an agent but also the identity of the principal, . . . ." Id. 
(Citation omitted).  The trial court's finding that MFX was unaware of Joseph
acting on behalf of his father Donald is a factual finding that is reviewed for
clear error.  Id.  
	[¶11] The evidence demonstrates that Joseph McGillicuddy signed
the memorandum of sale without disclosing that he was an agent or that
Donald McGillicuddy was the principal.  LaVasseur testified that when
negotiating the contract he thought he was purchasing Joseph
McGillicuddy's potatoes.  The court, therefore, did not err by finding Joseph
McGillicuddy jointly and severally liable for the judgment.  
III.
	[¶12] The McGillicuddys contend that the court erred in its
calculation of damages.  We disagree.  The appropriate measure of damages
for the breach of an express warranty is set forth in 11 M.R.S.A. § 2-714
(1995), which provides in part:
 
	(1) Where the buyer has accepted goods and given
notification (section 2-607, subsection (3)) he may recover as
damages for any nonconformity of tender the loss resulting in
the ordinary course of events from the seller's breach as
determined in any manner which is reasonable.  

Id.  The comment to that subsection states, "The 'non-conformity' referred
to in subsection (1) includes . . . breach[] of warrant[y] . . . .  In the case of
such non-conformity, the buyer is permitted to recover for his loss 'in any
manner which is reasonable.'" Id. (comment 2).  The assessment of damages
is generally within the province of the fact finder.  We will not substitute our
judgment for that of the fact finder unless it is the product of bias,
prejudice, improper influence, or was reached under a mistake of law or in
disregard of the facts.  S.H. Nevers Corp. v. Husky Hydraulics, Inc., 408 A.2d
676, 680 (Me. 1979) (citation omitted).  There was evidence that Sawyer
incurred an actual loss of $36,143 and that MFX incurred a loss of
$34,948.13 as a result of the breach of express warranty by the
McGillicuddys in supplying seed to MFX.  Thus, the award is fully supported
by the evidence.  
	The entry is:
						Judgment affirmed.

Attorney for plaintiff: Brent A. York, Esq. Phillips, Olore & Dunlavey, P.A. P O Box 1087 Presque Isle, ME 04769-1087 Attorney for defendants: Thomas J. Pelletier, Esq. Solman & Hunter, P.A. P 0 Box 665 Caribou, ME 04736
FOOTNOTES******************************** {1} Because we conclude the trial court did not err by its finding that an express warranty existed and the McGillicuddys breached the express warranty, we need not address the McGillicuddys' contention regarding the implied warranty. {2} 11 M.R.S.A. § 2-316 provides, in pertinent part: (2) 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 in writing and be conspicuous . . . . (3) Notwithstanding subsection (2) . . . . (b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him . . . .