Paul Borchard and Katherine Borchard V‪.‬

Paul and Katherine Borchard purchased Far-Go, a herbicide manufactured by Monsanto Company, from Wefco, Inc. Wefco acquired the herbicide from Monsanto in a sealed container and sold it in the same sealed container. The herbicide was designed to control wild oats in a field of barley, but its application allegedly failed to achieve its intended effect. The Borchards brought action against Monsanto based upon the theories of strict liability in tort, negligence, and breach of express and implied warranties. They also brought suit against Wefco for breach of express warranties by way of verbal instructions. Wefco asserted a cross-claim against Monsanto seeking indemnity and its costs and attorney fees. Wefco tendered the defense to Monsanto, which tender Monsanto refused because of the alleged express warranty on the part of Wefco. Wefco twice again tendered the defense to Monsanto.