Cobb v. Sure Crop Chemical Co.

• Decision Date: 04 December 1998
• Docket Number: No. S-97-512,S-97-512
• Citation: 587 N.W.2d 355,255 Neb. 625
• Parties: , 37 UCC Rep.Serv.2d 104 Paul COBB and Vicki Cobb, doing business as Wineglass Ranch, appellants and cross-appellees, v. SURE CROP CHEMICAL CO. and Simplot, Inc., divisions of J.R. Simplot Co., appellees and cross-appellants.
• Court: Nebraska Supreme Court

Page 355

587 N.W.2d 355

255 Neb. 625, 37 UCC Rep.Serv.2d 104

Paul COBB and Vicki Cobb, doing business as Wineglass Ranch, appellants and cross-appellees, v. SURE CROP CHEMICAL CO. and Simplot, Inc., divisions of J.R. Simplot Co., appellees and cross-appellants.

No. S-97-512.

Supreme Court of Nebraska.

Dec. 4, 1998.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. In reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may reasonably be abduced from such facts, but does not accept conclusions of the pleader.

2. Pleadings: Appeal and Error. Whether a petition states a cause of action is a question of law regarding which an appellate court has an obligation to reach a conclusion independent of that of the inferior court.

3. Jury Instructions: Appeal and Error. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.

4. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.

5. Demurrer: Final Orders: Appeal and Error. The sustaining of a general demurrer that is not followed by a judgment of dismissal terminating the litigation does not constitute a reviewable final order.

6. Demurrer. Where a demurrer is sustained as to one cause of action in a case which has multiple causes of action, the case still pends until dismissed.

7. Demurrer: Pleadings. If the petition, liberally construed, states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.

8. Uniform Commercial Code: Contracts: Warranty. Pursuant to Neb. U.C.C. § 2-315 (Reissue 1992), implied warranties are imposed upon goods when and only when they become the subject of a contract for their sale.

9. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the tendered instruction.

10. Jury Instructions: Pleadings. A party is not entitled to a jury instruction on a theory of the case not presented by the pleadings.

11. Jury Instructions: Appeal and Error. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.

12. Directed Verdict. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom.

T.J. Hallinan, of Cobb & Hallinan, P.C., Lincoln, for appellants.

Jeffrey A. Silver, Omaha, for appellees.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

This case arises out of a jury trial in which both parties asserted breach of contract actions. The jury found against both parties as

to their respective claims. Appellants and cross-appellees Paul Cobb and Vicki Cobb, doing business as Wineglass Ranch (the Cobbs), ask this court to reverse the district court's judgment on grounds that the district court improperly instructed the jury and improperly sustained a demurrer to their operative petition's second cause of action. Appellees and cross-appellants Sure Crop Chemical Co. and Simplot, Inc., divisions of J.R. Simplot Co. (collectively Sure Crop), ask this court to reverse the district court's dismissal of their motion for directed verdict on their counterclaim. We affirm the district court's judgment in all respects.

BACKGROUND

The Cobbs operate a ranch southeast of Minatare, Nebraska. In the spring of 1994, the Cobbs decided to plant 25 acres of alfalfa to provide feed for the cattle they raise. Paul Cobb (Cobb) talked with local area farmers about using preemergent herbicides, and most suggested the use of Eptam. The local state cooperative extension office also recommended Eptam. In late May 1994, Cobb met with Donald E. Dillman, who sells herbicides and incorporates them into the soil, to discuss incorporating a herbicide into a field where Cobb planned to plant alfalfa. Dillman does business under the name "Sure Crop" and is a salesperson for Simplot, Inc.

Cobb and Dillman gave contradictory accounts of their conversations which formed the oral contract now at issue. Cobb testified that he drove to Dillman's place of business and asked Dillman about applying Eptam on Cobb's 25-acre field as a preemergent. Cobb said Dillman told him he would have to disk the ground twice and then after the application, disk the soil as soon as possible. Cobb said that in the first week of June 1994, he called Dillman, stating that he had prepared the ground. Cobb said he recalled having no other conversations prior to Dillman's application of the herbicide.

Dillman, on the other hand, testified that at a cafe in Minatare he and Cobb first discussed establishing an alfalfa crop. Dillman said Cobb told him he wanted to use Eptam. Dillman said he and Cobb drove to the field where Cobb planned to plant the alfalfa. Standing at the edge of the field, Dillman said he observed corn stalks and other residue in the field, and he then told Cobb that Cobb could not use Eptam because Eptam required simultaneous incorporation and the stalks and residue would plug up his incorporator. Dillman said he then suggested the application of the herbicide Treflan E.C. instead of Eptam. He said he suggested Treflan E.C. because it controls the same weeds as Eptam, except for nightshade, yet Treflan E.C. has a longer incorporation time that would permit Cobb to incorporate the chemical by disking after Dillman had applied it. Dillman said he asked Cobb if the field contained nightshade and said Cobb indicated it did not. Dillman admitted that he did not closely inspect the field to determine what types of weeds were growing. Dillman said Cobb orally agreed to use Treflan E.C. Dillman said he told Cobb that he would need to disk the ground twice in a cross pattern after the Treflan E.C. was applied.

Cobb did not deny such conversations occurred, but testified that he did not recall going out to his field with Dillman, discussing the incorporation problem with Eptam, or having any conversation with Dillman in which Treflan E.C. was discussed.

On June 7, 1994, Dillman applied Treflan E.C. to the Cobbs' field. Cobb disked the ground once and about 2 days later, planted alfalfa in the field. Cobb said he first discovered that Treflan E.C. was applied when he reviewed Dillman's bill in July.

Weeds outgrew the alfalfa, and by August 1994, the weeds were 2 1/2 to 3 feet tall throughout the field. In some parts of the field, no alfalfa grew. Although he expected 1 to 1 1/2 tons of alfalfa that year, Cobb claimed the entire 1994 crop was a loss. the course of the winter, Cobb repeatedly told Dillman that he would pay Dillman's bill. He did not.

Cobb testified that in 1995 and 1996, he harvested between 2 and 2 1/2 tons less of alfalfa than he expected and attempted to sell it as "green chop," but it was worthless because it was too weedy.

The Cobbs filed the instant action against Sure Crop in November 1995. Their amended operative petition, filed in February 1997, asserted two causes of action for money damages. In the first cause of action, the Cobbs alleged that they had entered into a contract with Sure Crop to apply Eptam on the 25-acre field for the purpose of controlling weeds, but Sure Crop applied Treflan E.C., and that such action caused the destruction of alfalfa because the Treflan E.C. did not control the weeds. In the second cause of action, the Cobbs allege that they had entered into a contract with Sure Crop to apply Eptam, that Dillman inspected the field prior to application, and that weeds were visible for identification. The Cobbs allege that they relied on the expertise of Dillman to determine if Eptam would control the weeds visible in their field; that Dillman had a duty to make a proper inspection of the field; that Dillman chose and applied Treflan E.C.; that Treflan E.C., by its own label, is unfit for use on seedling alfalfa; and that the application of Treflan E.C. destroyed the alfalfa by not controlling the weeds. Sure Crop counterclaimed for money damages, alleging that the Cobbs requested that Treflan E.C. be applied, that Sure Crop did so, and that the Cobbs did not pay the bill for the contracted goods and services.

Sure Crop moved for summary judgment, which the district court denied. Sure Crop then demurred, stating that the Cobbs' second cause of action failed to state facts upon which relief could be granted. On March 14, 1997, the trial court sustained the demurrer on those grounds, stating that the Cobbs' second cause of action was duplicative of the first. The court gave the Cobbs leave to amend their petition, but the Cobbs did not amend.

At trial, a nonscientific sampling of weeds growing in the Cobbs' alfalfa field in the fall of 1995 was introduced into evidence. Emery W. Nelson, a former University of Nebraska pest and author of the "Nebraska Weed Book," testified for the Cobbs that many of the weeds listed would have competed for moisture and sunlight with the alfalfa. Nelson said that of the 10 weeds sampled, Treflan E.C. would control only 1 of them. However, he also said Eptam would be equally ineffective against the weeds sampled. Sure Crop's witness Robert G. Wilson, a University of Nebraska agronomy professor, also testified that both Treflan E.C....