England v. Leithoff

• Decision Date: 13 August 1982
• Docket Number: No. 44350,44350
• Parties: , 34 UCC Rep.Serv. 453 James ENGLAND, Appellee, v. Robert A. LEITHOFF, Appellant.
• Court: Nebraska Supreme Court

Page 98

323 N.W.2d 98

212 Neb. 462, 34 UCC Rep.Serv. 453

James ENGLAND, Appellee, v. Robert A. LEITHOFF, Appellant.

No. 44350.

Supreme Court of Nebraska.

Aug. 13, 1982.

Syllabus by the Court

1. Judgments: Appeal and Error. In a law action tried to the court without a jury, the findings of the court have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

2. Judgments: Appeal and Error. It is not within the province of this court in a law action to resolve conflicts in or to weigh evidence. If there is a conflict in the evidence, this court will review the judgment rendered, will presume the controverted facts were decided by the trial court in favor of the successful party, and the findings will not be disturbed on appeal unless clearly wrong.

3. Sales: Warranty. It is the general rule of law that a warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it is intended that the buyer shall rely in making the purchase.

4. Livestock: Sales: Warranty. Oral representations of the origin of livestock made in the course of the sale of livestock are express warranties relating to the livestock.

John S. Mingus of Mingus & Mingus, Ravenna, for appellant.

John Wightman of Wightman & Fallesen, Lexington, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

WHITE, Justice.

This is an appeal in a law action from the judgment of the District Court for Buffalo County, Nebraska, in favor of the plaintiff-appellee for $1,789.03 and costs of $427.06. The District Court affirmed the judgment of the Buffalo County Court. The errors assigned are essentially that the decision is contrary to the law and is not supported by the evidence.

In considering the errors alleged on appeal, we are mindful of our standard of review: "In a law action tried to the court without a jury, the findings of the court have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong." McDowell Road Associates v. Barnes, 198 Neb. 207, 210-11, 252 N.W.2d 151, 153 (1977). " 'It is not within the province of this court in a law action to resolve conflicts in or to weigh evidence. If there is a conflict in the evidence, this court will review the judgment rendered, will presume the controverted facts were decided by the trial court in favor of the successful party, and the findings will not be disturbed unless clearly wrong....' " Buttner v. Omaha P. P. Dist., 193 Neb. 515, 517-18, 227 N.W.2d 862, 864 (1975).

The suit arose out of the purchase by the plaintiff, James England, of eight bred gilts (female pigs). The sale took place on April 21, 1979. The seller of the gilts was the defendant, Robert A. Leithoff. England purchased the gilts in response to an advertisement Leithoff ran in the Grand Island Independent newspaper. England contacted Leithoff and the price was fixed at $1,760 for all eight, or $220 each. England testified that Leithoff informed him "that he had got them from a friend auctioneer of his and I said if these come off of the salebarn or out of the salebarn, I don't want them and upon his answer, they had not come from a salebarn." England testified that if he had known the gilts had been sold at a sale barn, he would not have purchased them. The gilts had, in fact, been purchased by Leithoff at a sale barn in Sargent, Nebraska, on April 13, 1979. The gilts appeared to be healthy on delivery on April 21, 1979, and were placed on clean ground at England's farm. The first gilt delivered on April 24, 1979, within 3 days of the purchase, and all 9 pigs were dead at birth. Four more gilts delivered within 24 hours and all pigs were born dead. Eleven pigs were ultimately delivered alive from the eight gilts.

Shortly after the delivery of the first gilt, England contacted Robert Hinke, a livestock equipment dealer from Axtell, Nebraska. Hinke testified that he was born and raised on a farm and had raised hogs practically all his life. Further, he had been a partner with a veterinarian and had worked as a veterinarian's assistant, assisting in diagnosis and treatment of diseases of hogs. Hinke testified that he had attended seminars run by veterinarians from Iowa State University and Purdue University relating to animal care, and has read extensively on the subject. Hinke drove to the England farm and observed the gilts that had just given birth to the dead pigs. He observed excessive saliva at the mouth and heavy mucous drainage of the vagina, and the piglets were premature, gaunt, and their hair was shorter than normal. Over objection, he was allowed to testify that the gilts were suffering from a swine disease called leptospirosis. Hinke took two of the dead piglets to Dr. Glen Nickelson of the Holdrege Veterinary Clinic. Dr. Nickelson examined the pigs internally and externally, and observed that the lungs were flat, indicating that the pigs were born dead. Hinke related his observations of the gilts. Dr. Nickelson testified that in his opinion the gilts suffered from leptospirosis, a disease that destroys the value of gilts as breeding stock and results in either aborted dead pigs or stunted pigs that fail to gain weight or reach market weight as do pigs born of healthy gilts. He further testified that leptospirosis has an incubation period of from 5 to 21 days, and that the gilts suffered from the disease at the time they were delivered to the England farm.

Hinke further testified that hog producers would not purchase gilts from a sale barn because "Where they run so many hogs through salebarns, it is inevitable that you can ... that you can take hogs that are well and run them through a salebarn and they will pick up a disease from the manure if nothing else in the pens and the alleys and therefore farmers who buy breeding stock ... there are very few that I know of that would even take the risk of buying from a salebarn for brood stock in hogs." Hinke further testified that he would never recommend to a customer to buy gilts from a sale barn, and that, in view of the risk, his opinion of the value of a bred sow from a sale barn was that "they would have to pay me to take a bred sow out of a salebarn."

England introduced a regulation of the state Department of Agriculture adopted April 14, 1975, pursuant to Neb.Rev.Stat. §§ 54-1157 to 54-1186, 54-1701 to 54-1711, and 54-2001 to 54-2019 (Reissue 1978), which provides at (3)(c)(i)(E): "Swine released from a market or concentration point shall be confined on the premises of the purchaser for thirty (30) days separate from all other swine ...." Although plaintiff urges that a private cause of action is created by the regulation in favor of purchasers from buyers who violate this regulation, in view of our decision here we...