Hubbard Fertilizer Co. v. American Trona Corp.

Stockbridge, J., delivered the opinion of the Court. This suit was brought by the Hubbard Fertilizer Company to recover from the American Trona Corporation a large amount of money which had been paid out by the plaintiff as damages supposed to. have resulted front the use by its customers of fertilizer manufactured by the. plaintiff. The alleged damage was claimed to have been occasioned by borax in the mxxriate of potash sold by the defendant to- the plaintiff. The first two coxxnts. of the declaration were upon the theory of a. breach of an express; warranty and during the progress of the trial a third coixnt was added, upon an alleged or implied warraixty as to the percentage of borax in the potash.

There were; in reality two- contracts, one calling for a single carload which was shipped to Baltimore from California, and used by the plaintiff in the fertilizer manufactured by it, and in this case no complaint was ever1 made of any deleterious effects, resulting from the use of the fertilizer. The second contract was for a number of carloads which were shipped, part to Maine, and the balance to Norfolk and Baltimore. That shipped to Maine was xxsed by the plaintiff in the manufacture of fertilizer intended for use in connection with the growing' of potatoes, principally in Aroostook County. A large amount of the fertilizer containing this potash was made tip, sold, and used, and certain it is that- the-fields upon which this fertilizer was used gave crops, of only about one-half of the amount to have been expected.

It is for this reason that the plaintiff made; settlement with the farmers, paving out in so doing $122,640.16, and having done so, this suit was brought to recover the amount so paid out to its ²⁴⁸ customers upon an alleged breach of warranty given by the Trona Corporation to the Hubbard Company. The warranty, if any, was that the muriate of potash sold by the Trona Corporation should not contain borax to an amount in excess of den per cent. This appears in letters which passed between the parties. The charge of a violation of the supposed warranty is not borne out by the evidence of the plaintiff.

Samuel K. Wiley, an analytical chemist, specializing in fertilizers, fixes the percentage of borax, found in the fertilizer manufactured by the Hubbard Company, as 1:24%, 1:21% and .84%. This witness further testified that, ¡based upon his analysis of the mixed fertilizer samples supplied him by the H'uibhard Company, no one of them contained borax which was in excess of ten per cent, of the amount of potash salts which, according to the formula, given, had been used in the fertilizer iu question, hut only about three-quarter’s of ten per cent., and in the third case two-thirds of ten per cent. The evidence therefore adduced by the plaintiff itself falls far short of establishing a violation of the supposed expressed warranty that the percentage of borax should not exceed ten per ceüt. An. analysis was also made by three chemists in California, who reported a borax content of from 6:91% to 8:29%.

Thus all of the analyses showed a percentage of borax well under the warranted amount. Further than this, that borax would have an injurious effect on plant life was not known at the time1’when the contracts were made and the Trona potash shipped to the Hulv hard Company. This is positively testified to by Hr. Wiley.

It is