Dold v. Sherow

• Decision Date: 23 July 1976
• Docket Number: No. 48021,48021
• Citation: 552 P.2d 945,220 Kan. 350
• Parties: , 19 UCC Rep.Serv. 1356 Wilfred DOLD, Appellee, v. Mike SHEROW, Appellant.
• Court: Kansas Supreme Court

Page 945

552 P.2d 945

220 Kan. 350, 19 UCC Rep.Serv. 1356

Wilfred DOLD, Appellee, v. Mike SHEROW, Appellant.

No. 48021.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. Orders entered as a result of a pretrial conference have the full force of other orders of the court and they control the subsequent course of the action unless modified at trial to prevent manifest injustice.

2. A party may not raise the inadequacies in a pleading after the issues have been determined by a pretrial order.

3. Failure to plead and prove the statutory requirement of notice under K.S.A. 84-2-607(3) is waived by failure of a party to raise the issue at pretrial conference.

4. In an action to recover damages for breach of express and implied warranties arising out of the sale of cattle the record is examined and it is held: The trial court did not err in (1) denying defendant's motion for a directed verdict and for judgment notwithstanding the vardict; (2) instructing the jury on the measure of damages for breach of warranty; (3) instructing the jury on fraud and punitive damages; (4) refusing to submit to the jury requested interrogatories; and (5) refusing to set aside the verdict of the jury as not being supported by the evidence.

M. E. Chalfant, of Branine, Chalfant & Hyter, Hutchinson, argued the cause, and J. Stanley Hill, Hutchinson, of the same firm, was with him on the brief for appellant.

Kenneth E. Peirce, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, argued the cause, and Rodney K. Lyons, of Lyons & Sanchez, Chartered, Wichita, was with him on the brief for appellee.

OWSLEY, Justice:

Plaintiff Wilfred Dold filed suit to recover damages for the breach of express and implied warranties arising out of the purchase of cattle from defendant Mike Sherow. Defendant appeals from a $25,000 jury verdict in favor of plaintiff.

Plaintiff Dold was a cattleman with a herd of approximately fifty stock cows. In search of additional stock Dold came upon Sherow's notice in the 'High Plains Journal,' advertising the sale of fifty head of white-face cattle. Dold contacted Sherow and arranged to meet with him to discuss the sale. On January 2, 1973, Dold, accompanied by his two sons went to defendant's farm near Langdon, Kansas, to view the cattle. According to the testimony of Dold and his sons, Sherow represented that the cattle were four to seven years old and that they would all calve by April 15, 1973. Dold claims he told Sherow he would have no use for the cows if they were not bred. The cows were not pregnancy or age checked because of the additional expense. Relying upon the alleged representations made by Sherow, Dold purchased the fifty cows for $228.00 per head.

On January 3, 1973, the cattle were delivered to Dold. One of them died on the second day and within a few days Dold noticed that the cattle were not doing well. Dold called a veterinarian, Dr. Roger Gracey, who checked three of the cows and found one was not pregnant. He also determined that some of the cows were older than seven years. Dr. Gracey made a more extensive check of the entire herd around March 1, 1973. Based upon his examination of the cattle, Dr. Gracey determined that of the fifty head Dold purchased from Sherow only two would calve by April 15, and forty of the cows were over seven years old.

On November 7, 1973, Dold filed suit in the district court alleging that Sherow wrongfully and recklessly made misstatements, misrepresentations and warranties with the intent to deceive and induce Dold to purchase the cows. By amended petition Dold prayed for actual damages in the amount of $25,883.38, and punitive damages of $10,000. Sherow answered by general denial. The jury found in favor of plaintiff Dold and awarded him $22,000 in actual damages and $3,000 in punitive damages.

As his first claim of error defendant contends the trial court erred in not granting his motions for a directed verdict and judgment notwithstanding the verdict. The motions were based on a claim there was no evidence to show that plaintiff gave notice to defendant of the breach of warranty pursuant to K.S.A. 84-2-607(3). The statute provides:

'(3) Where a tender has been accepted

'(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; . . .'

The burden is on the party claiming the breach to plead and prove notice within a reasonable time. (Ehlers v. Chrysler Motor Corporation, 226 N.W.2d 157 (S.Dak.1975); Schnabl v. Ford Motor Co., 54 Wis.2d 345, 195 N.W.2d 602, 198 N.W.2d 161 (1972); Lindsey v. International Shoe Company, 45 Ala.App. 566, 233 So.2d 507 (1970); Carey v. I. J. Kayle & Associates, 122 Ill.App.2d 403, 259 N.E.2d 304 (1970); Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969); Jan Ree Frocks v. Pred, 68 S.D. 356, 2 N.W.2d 696 (1942).) The notice requirement is generally considered to be in the nature of a condition precedent to plaintiff's recovery. (Bennett v. United Auto Parts, Inc., 294 Ala. 300, 315 So.2d 579 (1975); Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A.2d 502 (1974); Kohlenberger v. Tyson's Foods, 256 Ark. 584, 510 S.W.2d 555 (1974); Page v Camper City & Mobile Home Sales, 292 Ala. 562, 297 So.2d 810 (1974).)

It is undisputed in the instant case that plaintiff's petition failed to allege that notice was given; nor was there a general allegation in the petition of fulfillment of all conditions precedent. In fact, the record supports the conclusion that there was no evidence at trial by either plaintiff or defendant indicating whether notice was given pursuant to 84-2-607(3).

Based on these facts the issue before us boils down to whether plaintiff is barred from any remedy by failure to plead and prove notice. The official UCC comment to 84-2-607(3) (Comment No. 4) notes that 'the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.' By receiving timely notice of an alleged breach the seller is afforded an opportunity to prepare his defenses and govern his conduct accordingly. (Davidson v. Wee, 93 Ariz. 191, 379 P.2d 744 (1963).)

Plaintiff purchased the cows from defendant on January 2, 1973. On January 10, 1973, three of the cows were inspected by a veterinarian and found to be older than represented and without calves. The entire herd was inspected around March 1, 1973, whereupon the extent of the breach was fully discovered by plaintiff. Suit was not brought until eight months later, on November 7, 1973.

We have established that the statutory requirement of notice under 84-2-607(3) is in the nature of a condition precedent which must be pled and proved by the party claiming the breach of warranty. Under K.S.A. 60-209(c) it would have been sufficient for plaintiff to aver generally that all conditions precedent had been performed. (James v. City of Wichita, 202 Kan. 222, 447 P.2d 817.) Having failed to do so, the plaintiff's petition was defective, but plaintiff points out that the issue of notice was not raised at the pretrial conference. The pretrial order filed by the trial court set out the amendments to the pleadings, the allegations of the parties, the issues of law and fact to be determined, and the list of witnesses and exhibits. No reference is made to the issue of notice. Part of the court's order stated:

'IT IS BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the subsequent course of this action and the trial thereof, relative to the matters so specified, shall be controlled by the following, unless modified to prevent manifest inustice.'

Statutory authorization for a pretrial conference is found in K.S.A. 60-216. The final paragraph of that section provides:

'The court in its discretion may, and shall upon the request of either party make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . . .'

Pursuant to this provision this court has held on many occasions that the orders entered at a pretrial conference have the full force of other orders of the court and they control the subsequent course of the action, unless modified at trial to prevent manifest injustice. (Herrell v. Maddux, 217 Kan. 192, 535 P.2d 935; Beard v. Montgomery Ward & Co., 215 Kan. 343, 524 P.2d 1159; Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211; Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240; Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P.2d 1; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P.2d 380; Brown v. Hardin, 197 Kan. 517, 419 P.2d 912.) Accordingly, it has been held that a party may not raise the inadequacies in a pleading after the issues have been determined by a pretrial order. (Bilardi Construction, Inc. v. Spencer, 6 Cal.App.3d 771, 86 Cal.Rptr. 406 (1970); Frank v. Giesy, 117 F.2d 122 (9th Cir. 1941).)

In line with this authority we hold that plaintiff's failure to plead and prove the statutory requirement of notice under 84-2-607(3) was waived by defendant's failure to raise the issue at the pretrial conference. Since it was not one of the issues specified in the pretrial order, and there was no motion to amend the order, it was not necessary for plaintiff to offer evidence of notice at trial. Defendant's motion for a directed verdict at the close of the evidence came too late to raise the issue for the first time. The pretrial order shall control as to the issues properly before the court. It is therefore our conclusion that the trial court did not err in refusing to grant defe...