Automatic Poultry Feeder Co. v. Wedel

• Citation: 213 Cal.App.2d 509,28 Cal.Rptr. 795
• Court: California Court of Appeals
• Decision Date: 28 February 1963
• Parties: AUTOMATIC POULTRY FEEDER CO., Plaintiff and Appellant, v. Robert J. WEDEL et al., Defendants and Respondents. Robert J. WEDEL, Plaintiff and Respondent, v. AUTOMATIC POULTRY FEEDER COMPANY et al., Defendants and Appellants. Civ. 177.

Page 795

28 Cal.Rptr. 795

213 Cal.App.2d 509

AUTOMATIC POULTRY FEEDER CO., Plaintiff and Appellant, v. Robert J. WEDEL et al., Defendants and Respondents.

Robert J. WEDEL, Plaintiff and Respondent, v. AUTOMATIC POULTRY FEEDER COMPANY et al., Defendants and Appellants.

Civ. 177.

District Court of Appeal, Fifth District, California.

Feb. 28, 1963.

Taylor & Taylor by Edward T. Taylor, Jr., Modesto, for appellant.

William Frank Roberts, Stockton, for respondents.

Taylor & Taylor and Edward T. Taylor, Jr., Modesta, for plaintiff, defendants and appellants, Automatic Poultry Feeder Co. and Paul Ter Avest.

William Frank Roberts for defendants and plaintiff and respondent, Robert J. Wedel.

CONLEY, Presiding Justice.

The judgment appealed from in consolidated cases centers about the delivery by Automatic Poultry Feeder Company, a corporation, to Mr. and Mrs. Wedel of certain feeding machinery for use on their poultry farm near Groveland. Robert J. Wedel, in turn sued the Automatic Poultry Feeder Company and its agent, Paul Ter Avest, for damages allegedly caused by the failure of the machinery to perform in accordance with the warranty of suitability, thereby causing the death of several thousand turkeys and the loss to Mr. Wedel of a bonus promised him under certain contingencies by General Mills Company. All of the turkeys in two flocks on the Wedel farm were owned by General Mills Company; Mr. Wedel had a written contract with that company under which he would receive progress payments at fixed stages of growth of the turkeys and a bonus of 10 cents a head for all birds actually brought to maturity and sold, if the loss by death and culling of the two flocks should prove to be less in the aggregate than 10 per cent of the total poults delivered to him for raising.

The trial court allowed Automatic Poultry Feeder Company nothing on its claim for the reasonable value of the machinery on the ground that it was useless for the purpose for which it was sold. The court's findings on this subject are: '* * * that the reasonable value of the merchandise so supplied to defendants was nil, the said merchandise being unsuitable for the purpose for which it was sold and installed; further, that defendants' acquiescence in the account was conditioned upon four conditions, none of which were met by plaintiff.' While the appeal is from the entire judgment, appellants' brief urges no claim of error with respect to the denial of relief on the company's complaint; we shall not look for errors where none were found by appellants' attorneys and will affirm this portion of the decision.

We turn to the award made on the claim urged by Mr. Wedel against the machinery company and its agent, Paul Ter Avest. As the turkeys were owned by General Mills, the plaintiff sued only for loss of his profits in the form of a bonus which he alleges he would have received except for the breach of warranty. The turkey growing contract, dated September 12, 1960, between General Mills, Inc., and Robert J. Wedel and Aline C. Wedel, his wife, provided that General Mills should deliver to the growers' ranch '* * * approximately 40,000 poults, plus feed and medication supplies necessary to raise these turkeys to market'; that General Mills should advance the grower 10 cents per poult at the time of placement to be deducted from intermediate or final advances; that General Mills should pay '* * * three (3) cents per pound live weight per saleable hen turkey and two (2) cents per pound live weight per saleable tom turkey when processed.' Paragraph 6 of the contract reads as follows:

'General Mills shall, at the close of all projects covered by this contract on Grower's ranch, pay an additional ten (10) cents per saleable tom or hen turkey if mortality for all flocks was ten (10) per cent or below. This will be for total over-all mortality and shall not apply on separate flock mortality. Mortality will be determined on basis of total number placed less the number processed; * * *'

It will be unnecessary to reproduce all of the complex and well thought out provisions of the agreement, which consists of five typewritten pages and 31 numbered paragraphs. The inference that this was a standard agreement used in the widespread turkey growing business of General Mills may be deduced from the fact that on the first page at the top righthand corner is the statement as to the form used: 'Revised August 1, 1960.' It will be sufficient here to note that by the terms of the contract title to all turkeys remained in General Mills, and that if the grower should fail to carry out or abide by the agreement or should, through negligence or otherwise, adversely affect the equity of General Mills, the latter could terminate the contract and take over the flocks as well as the premises and equipment for completing the growing operation.

Appellants concede that there is substantial evidence to support the finding of the trial court that the machinery installed by appellants upon respondent's ranch was improperly designed in that the lip of the feeding cans was too large, thus causing the destruction of a portion of respondent's turkeys by starvation. The trial court in its Memorandum of Opinion says that:

'The total flocks aggregated 51,505, less a normal mortality of 4,528, or a net 46,977 birds which would have been marketed, but for the misfortune of the defective installation. Upon this amount plaintiff would have been entitled to a bonus of 10 cents per bird, or $4,697.70. For this amount plaintiff is entitled to judgment, * * *'

But appellants claim that '* * * at least two errors of law were made by the trial court, * * * which make reversal of the judgment necessary.' Its first contention is centered upon section 3355 of the Civil Code:

'Where certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.'

This code section apparently refers to the value of specific property involved in litigation rather than to business profits or a bonus. It has been applied to an owner's special valuation of a race horse (Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869), an uncommon variety of sweetpea seeds (Zvolanek v. Bodger Seeds, Ltd., 5 Cal.App.2d 106, 42 P.2d 92), an unusual Hereford cow (King v. Karpe, 170 Cal.App.2d 344, 338 P.2d 979), and it would seem that the section in its literal meaning does not apply to this case. However, the general principle embraced in the section does find application to the situation presented by the record, because the plaintiff is not suing for what would normally be considered general damages but only for what would usually be termed special damages, that is to say, his loss of profits or bonus, and it is a general rule with respect to a claim for special damages arising from circumstances peculiar to the particular case that notice of such special factors must be communicated to or known by the other party at the time the contract is made in order to hold him liable therefor. In this connection the early case of Wallace v. Ah Sam, 71 Cal. 197, 200, 12 P. 46, 48, adopted the rule of Hadley v. Baxendale, 26 Eng.L. & Eq. 398, requiring as a condition to the recovery of special damages that:

"* * * if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damage resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated.

"But on the other hand, if those special circumstances were wholly unknown to the party breaking the contract, he at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances for such a breach of his contract."

The general rule contained in section 330 of the Restatement of Contracts at page 509 is as follows:

'In awarding damages, compensation is given for only those injuries that the defendant had reason to foresee as a probable result of his breach when the contract was made. If the injury is one that...