Majorcsak et al. v. Na-Churs Plant Food Co. (Canada) Ltd. et al., [1968] S.C.R. 645 (1968)

Supreme Court of Canada

Majorcsak et al. v. Na-Churs Plant Food Co. (Canada) Ltd. et al., [1968] S.C.R. 645

Date: 1968-05-13

Julius Majorcsak and Audry Majorcsak (Plaintiffs) Appellants;

and

Na-Churs Plant Food Company (Canada) Ltd. (Defendant) Respondent;

and

Samuel Lammens (Defendant).

Samuel Lammens (Defendant) Appellant;

and

Julius Majorcsak and Audry Majorcsak (Plaintiffs) Respondents;

and

Na-Churs Plant Food Company (Canada) Ltd. (Defendant) Respondent.

1968: March 13, 14, 15; 1968: May 13.

Present: Cartwright C.J. and Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence-Liquid fertilizer purchased under contract whereby manufacturer was to arrange for application of product to purchaser's crop-Purchaser subsequently arranging with sprayer to add pesticide to fertilizer-Herbicide added instead of pesticide-Crop destroyed-Sprayer liable in negligence-No liability on part of manufacturer.

The plaintiffs, husband and wife, were the owners of a tobacco farm. Under a written contract the male plaintiff ordered, inter alia, 45 gallons of a liquid fertilizer from the defendant manufacturer. It was provided in the contract that the manufacturer would make arrangements to apply the fertilizer to the plaintiffs' crop at local rates, and payment for spraying was to be made by the grower direct to the spraying service company. The chemical was to be applied at the rate of 2 gallons per acre.

The co-defendant, a custom sprayer, was instructed by a representative of the manufacturer that the crop was ready for spraying and he thereupon sent two of his employees to the plaintiffs' farm to carry out the operation. Having learned from these employees that, in accordance with their instructions, the chemical was to be applied at the rate of 1½ rather than 2 gallons per acre, the plaintiff determined that with an additional 5 gallons of the product his entire crop could be sprayed instead of only part of it as he had originally intended. He asked the men if they could obtain from their employer additional fertilizer and upon being assured that they could do so asked if they would also spray endrin (a...

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