Appeal from Superior Court of Grant County. Docket No: 94-2-00315-8. Date filed: 01/18/96. Judge signing: Hon. Evan E. Sperline.
Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Stephen M. Brown.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. In 1988, Bakker Brothers of Idaho, Inc., agreed to buy Charles E. Graaff's 1989 onion seed crop. Their contract required an 85 percent germination rate. Mr. Graaff harvested the onion seed in September 1989. On October 7, 1989, the seed was received by Bakker. On October 11, Bakker began processing Mr. Graaff's seed by running it through a screen mill and scalping process. The process consists of passing the seed through a series of screens, shakers, and fans to eliminate dirt and other unwanted material in the seed. Bakker then cleaned the seed with water and dried it.
At various points in the process, Bakker tested samples for germination. Before processing, the germination rate was 84 percent. After processing, germination rates fell to 69 percent and 67 percent on two separate samples. Because of the low germination rates, Bakker had the seed tested at several independent laboratories. That testing took place in January, February and April 1990 and produced germination rates ranging from 51 percent to 80 percent.
In January 1990, Bakker told Mr. Graaff that the seed had failed the contract germination requirements and was unmarketable. Bakker said it would not pay Mr. Graaff for the seed unless it found a buyer. It could not find a buyer. On August 14, 1990, Bakker told Mr. Graaff to pick up his seed.
In 1994, Mr. Graaff sued Bakker. Both parties moved for summary judgment. The trial court granted Bakker's motion and dismissed Mr. Graaff's complaint. Mr. Graaff appeals.
We are asked to answer the following questions:
(1) Does a factual issue remain about when the germination rate should be measured before or after processing?
(2) Did Bakker timely inspect and effectively reject the seed?
(3) Did Bakker accept the seed because its acts were inconsistent with Mr. Graaff's ownership?
Standard of Review. We review a motion for summary judgment de novo and engage in the same inquiry as the trial court. Webstad v. Stortini, 83 Wash. App. 857, 864, 924 P.2d 940 (1996), review denied, Wash. 2d (Apr. 2, 1997). We consider facts in the light most favorable to the nonmoving party. And we will affirm the grant of summary judgment only when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Id. at 864-65.
Germination Rate. Mr. Graaff first contends that material issues of fact remain about the contract germination rate. He argues that the germination rate should be tested before processing. The contract here requires an 85 percent germination rate but is silent on whether that is before or after processing. It simply says that Bakker can reject the crop if the germination rate is less than 85 percent "or if the ...