Reference no: EM133199634

Question: Farmer Pete is a crop and dairy farmer. Make It Grow Company sells and applies herbicides and fertilizers in addition to its other grain and crop-related businesses. In the spring of 2005, Farmer Pete met with Make It Grow Company's manager, Tom Thumb, who suggested fertilizers and herbicides that Farmer Pete should use on his fields. Farmer Pete agreed to notify the elevator when his fields were ready to be sprayed with herbicide. Between May 5 and May 18, 2005, Farmer Pete planted corn. On May 20, 2005, he told the secretary at Make It Grow Company that he had finished planting and that his fields were ready for spraying. After waiting eight days for the sprayers, Farmer Pete returned to Make It Grow Company and again notified the company that these fields were ready for spraying.

On June 13, 2005, after considerable complaining from Farmer Pete about the height of the foxtail and other weeds in his field, Make It Grow Company's staff sprayed 149 acres of Farmer Pete's fields and, three days later, sprayed the remaining 26 acres. Of these total acres, 149 acres were sprayed with a mixture of Accent, another herbicide, and a nonionic surfactant. Twenty-five acres were sprayed with a mixture of Accent and another herbicide. Nine acres were sprayed with herbicides other than Accent. Farmer Pete paid $8,394.60 for the herbicides and separately paid $918 for the spraying services.

The spray was not as effective as promised, and Farmer Pete, who lost substantial portions of his crops, filed suit under UCC Article 2 for breach of express warranty, warranty for a particular purpose, and the warranty of merchantability. Make It Grow Company maintains the contract is not covered under the UCC and that Farmer Pete's only remedy must be to show that Make It Grow Company was somehow negligent in its work. Who is correct? Is the contract governed by UCC or common law?