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Pioneer Peat, Inc. v. Quality Grassing & Services

November 26, 2002

PIONEER PEAT, INC., RESPONDENT,
v.
QUALITY GRASSING & SERVICES, INC., DEFENDANT, AND PIONEER PEAT, INC., RESPONDENT,
v.
RICHARD COLYER, ET AL., APPELLANTS.



Polk County District Court File No. C4001232

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

SYLLABUS BY THE COURT

I. To create an express warranty that the whole of the goods shall conform to a sample, the sample must form a basis of the bargain.

II. A seller does not have a reasonable time to cure when a buyer replaces a seller's product before rejecting that product.

The opinion of the court was delivered by: Lansing, Judge

Affirmed

OPINION

This appeal involves a dispute between a peat-moss supplier and a company that blends topsoils for golf-course greens. The district court found that the contract for a shipment of peat did not create a warranty by sample, the buyer did not reject the peat in a timely manner, the supplier was denied a reasonable opportunity to cure, and the ambiguity in the attorneys' fees provision should be construed against the supplier. The record supports the district court's findings of fact which, in turn, support its legal conclusions, and we affirm.

FACTS

Pioneer Peat, Inc. produces and sells peat moss, which is used to construct golf-course greens. Pioneer Peat markets the name of the peat it sells as Dakota Reed Sedge Peat (Dakota Peat). Richard Colyer owns Golf Agronomics, a company that blends topsoils for golf-course greens. Golf Agronomics purchases peat moss to blend with sand to obtain a "root-zone mix" that is placed on golf-course greens to ensure proper and consistent drainage on the greens.

Colyer contacted Jerry Schmitz at Pioneer Peat in February 1999 to purchase Dakota Peat moss to use on a golf course where the project engineer's specifications required Dakota Peat. During this conversation, Colyer advised Schmitz that he needed to receive a shipment of peat "early" so that the peat could be calibrated with sand to determine the proper root-zone mix for the project. Because he did not have enough storage space for an entire peat shipment, Colyer did not initially order all of the peat he needed.

Golf Agronomics received the first shipment of Dakota Peat in March 1999. Samples were taken from the shipment and mixed with sand in a blending machine to create an appropriate root-zone mix. In June 1999, Golf Agronomics ordered another shipment of Dakota Peat. Raw samples of peat were taken from this shipment too and blended with the same sand, in an attempt to create the proper root-zone mix, based on the calibration of the previous shipment. Test results showed that the fiber content in the peat changed from the first shipment to the second, and that the change affected the root-zone mix. On July 26, 1999, Colyer informed Schmitz that the project architect rejected the second shipment of Dakota Peat. About the same time, Colyer substituted Canadian sphagnum peat for the project. After July 26, Pioneer Peat did not offer to replace the second shipment of Dakota Peat, and Golf Agronomics refused to pay for that shipment.

Pioneer Peat sued Golf Agronomics and Colyer in November 1999 to collect payment for the second shipment. Golf Agronomics denied responsibility for payment, contending that Pioneer Peat breached an express warranty by sample, an implied warranty of merchantability, an implied warranty of fitness for a particular purpose, and failed to provide peat that complied with United States Golf Association (USGA) specifications.

Following trial, the district court found that no implied, express, or sample warranties had been created under the contract, that Dakota Peat met USGA specifications, that Golf Agronomics failed to reject the peat in a timely manner, and that Golf Agronomics did not give Pioneer Peat an opportunity to cure. The court ordered payment for the second shipment and payment of $500 in attorneys' fees. Golf Agronomics appeals the district court's conclusions on the ...


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