Serian Brothers, Inc. v. Agri-Sun Nursery

A commercial grower purchases young peach trees from a nursery and plants them. The trees eventually exhibit symptoms of a disease and are determined to be diseased. The grower sues the nursery. He contends that the trees were already diseased when he purchased them, and that they were not healthy trees as warranted by the seller. If the grower can prove that the trees were diseased when purchased, how are his damages measured? In Posz v. Burchell (1962) 209 Cal.App.2d 324 [ 25 Cal.Rptr. 896 ], this court held that the proper measure of damages was the difference between the value of the land as planted with the trees (or nursery stock) actually delivered and the value the land would have had if it had been planted with nursery stock of the kind warranted. (Id. at p. 341.) In the present case we hold that the Posz measure of damages is not the only measure of damages which may be utilized in a case of nonconforming nursery stock, and that a grower/buyer in this situation may instead choose to present expert evidence of lost profits and evidence of other incidental and consequential damages. We conclude that Posz was incorrectly decided insofar as it determined that only…