Ellendale Farmers Union Co-op. Ass'n v. Davis, 8986

• Decision Date: 28 June 1974
• Docket Number: No. 8986,8986
• Citation: 219 N.W.2d 829
• Parties: ELLENDALE FARMERS UNION COOPERATIVE ASSOCIATION, Plaintiff/Appellant, v. Newton DAVIS, Defendant/Appellee. Civ.
• Court: North Dakota Supreme Court

Page 829

219 N.W.2d 829

ELLENDALE FARMERS UNION COOPERATIVE ASSOCIATION Plaintiff/Appellant, v. Newton DAVIS, Defendant/Appellee.

Civ. No. 8986.

Supreme Court of North Dakota.

June 28, 1974.

Syllabus by the Court

1. The trial court's findings of fact are not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52(a), N.D.R.Civ.P.

2. Uncertainty as to the amount of damages does not preclude recovery, and mathematical certainty as to the amount of such recovery is not necessary. If a reasonable basis for computing an approximate amount of damages is provided, that is all the law requires.

3. Recovery of damages for breach of warranty, where there is reasonable certainty that substantial damages have resulted, will not be denied because the exact amount is difficult of ascertainment.

4. Upon timely motion of a party the trial court may amend its findings of fact, make additional findings and amend the judgment accordingly. Rule 52(b), N.D.R.Civ.P. In doing so, the trial court is not bound by its oral statements made from the bench at the close of the case when announcing its decision.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for appellant.

James N. Purdy, Ellendale, for appellee.

TEIGEN, Justice.

The plaintiff, Ellendale Farmers Union Cooperative Association (hereinafter Cooperative), has appealed from the judgment in this action, which action was tried to the court without a jury.

We are met at the outset with a procedural problem as the Cooperative also purports to appeal from an order granting the defendant's motion to amend the findings of fact. This is not an appealable order and a jurisdictional question arises, although neither party has taken issue thereon.

It appears from the record submitted on this appeal that following the entry of judgment the defendant, Newton E. Davis (hereinafter Davis), moved for an order amending the findings of fact, conclusions of law and order for judgment, which had been prepared by counsel for the Cooperative and signed by the court. The motion was resisted by the Cooperative and, after a hearing, the record of which was not certified to us, the trial court entered amended findings of fact, conclusions of law and order for judgment. The amended instrument merely amends the findings of fact; it does not change the amount contained in the order for judgment. However, it provides that the amended instrument supersedes and replaces the original findings of fact, conclusions of law and order for judgment.

A review of the record discloses that a new judgment has not been entered on the amended instrument. In view of the fact that no issue has been raised and because the amount of the judgment directed to be entered remains the same, it appears that both parties considered the original judgment entered as being the judgment entered on the amended findings of fact, conclusions of law and order for judgment. Therefore we will construe this amended instrument as having been entered nunc pro tunc and standing as authority for the judgment from which the appeal is taken.

Davis is a large hog raiser and, although he also farms eleven quarter sections of land and feeds sheep and cattle, it appears that about 40% Of his gross income is from the sale of hogs. Over the years he has purchased a good portion of the feed for his pigs from the Cooperative. The Cooperative operates a feed manufacturing plant and Davis purchased one ton of pig feed called 'Extra Pig Developer Medicated Feed' from the Cooperative which he intended to feed to 90 young pigs approximately three-to four-months old. These pigs were kept in a pen separate and apart from the rest of his pigs. Shortly after the purchased pig feed was fed to the 90 pigs, 32 of them died and the rest were stunted in growth.

Thereafter, in December 1970, the Cooperative brought this action against Davis for goods, wares and merchandise sold to Davis between the dates of March 31, 1968, and January 7, 1970, in the amount of $2,150.89. Davis answered and counterclaimed. In his answer he admitted his indebtedness to the Cooperative in the amount of $2,150.89. In his counterclaim he seeks damages in the amount of $2,490, based on a claim of breach of warranty. Davis alleges that the feed purchased from the Cooperative was warranted as being suitable for feeding pigs; that the feed was toxic because it contained an excessive amount of salt, resulting in the damages prayed for. The Cooperative replied, admitting that the feed sold to Davis was warranted as being suitable and safe for feeding to pigs, but denied that the feed was responsible for the death or injury to Davis's pigs.

The trial court found in favor of the Cooperative on its claim in the amount of $2,150.89, and also found in favor of Davis on his counterclaim and awarded Davis damages in the amount of $1,310 as an offset. Thus the judgment entered in favor of the Cooperative was for the difference, to wit, the sum of $840.89.

The Cooperative has raised six claims of error in allowing Davis's counterclaim. We have combined these six claims of error into three issues as follows:

(1) Insufficiency of the evidence to sustain the judgment on the question of liability;

(2) Insufficiency of the evidence to sustain the judgment as to the amount of damages awarded on the counterclaim; and

(3) Error on the part of the court in granting Davis's motion to amend the findings of fact.

It appears that the pen in which the 90 young pigs were kept contained a self-feeder and an automatic watering device. Davis had purchased one ton of the pig developer feed from the Cooperative on October 15, 1968, and he placed it in the feeder located in the pen on or about October 18, 1968. At the time Davis placed the feed in the hopper, or storage area, of the pig feeder it was not empty of feed. Thus, before the new feed added to the storage area moved, by gravity, into the pig troughs located on either side of the feeder, the old feed contained therein first had to be removed. This occurred as the pigs ate the feed. It was estimated that the hopper contained from five to six hundred pounds of old feed when the new feed was added.

On October 24, 1968, approximately six days after the feed purchased from the Cooperative had been added to the pig feeder, Davis discovered that some of his pigs were ill and, within a very short time, 32 of the pigs died and the remaining 58 pigs appeared to be ill. Davis telephoned the manager of the Cooperative, who told him to take some of the pigs in for examination by a veterinarian. The veterinarian examined the pigs and conducted a post-mortem examination on three of the dead pigs. He diagnosed that the deaths and the illness of Davis's pigs had been caused by salt poisoning.

Although Davis had other pigs in other pens, the feed in question was not fed to them. We the veterinarian diagnosed salt poisoning as the cause of the problem, Davis telephoned his farm home and instructed his twin sons, aged fourteen years, to add a different feed to the troughs contained on either side of the pig feeder. This placed additional feed on top of the feed within the troughs. Thus the feed contained in the hopper of the feeder ceased to run into the troughs until the added feed had been eaten.

The following morning samples of the feed were taken from the troughs, some by the manager of the Cooperative and some by Davis, which he delivered to the veterinarian. Each submitted the samples to laboratories for analysis. Four samples were analyzed by the Cooperative's laboratory which reported salt levels of .27%, .5%, .5% And .53%. Two samples were sent by the Cooperative to independent laboratories which reported salt levels of .79% And .90%. The veterinarian sent three samples for analysis: two were sent to the North Dakota State University Veterinary Science Department at Fargo, which reported salt levels of 3.8%, and 3.1%, and one sample was sent to the laboratory at South Dakota State College, which reported a salt level of .84%.

The pig developer manufactured by the Cooperative is a special feed for young pigs to hasten their growth. Prior to feeding the pig developer, Davis had been feeding a pig starter feed. The object of these special feeds is to permit the taking of these young pigs from their mothers at an earlier date in order that she may be bred earlier, thus producing more pigs. The Cooperative introduced an exhibit entitled 'Registered Feed Manufacturing Cost Sheet' which shows the proportions of various ingredients contained in the pig developer feed. This exhibit shows that there are a number of ingredients contained in the feed, such as, soybean meal, meat and bone meal, phosphate, calcium carbonate, arsanilic acid, middlings, alfalfa meal, oats, barley, corn, molasses, bentonite, and other ingredients, including salt. According to this exhibit, .5% Salt had been added as an ingredient. In the manufacturing process the feed is formed into pellets. The Cooperative established that it had manufactured ten and one-half tons of this feed in five batches and that it was from this supply that the Davis feed had been obtained. The evidence also...