Haley Nursery Co., Inc. v. Forrest
| Decision Date | 03 May 1989 |
| Docket Number | No. 23035,23035 |
| Citation | 381 S.E.2d 906,298 S.C. 520 |
| Court | South Carolina Supreme Court |
| Parties | HALEY NURSERY COMPANY, INC., Appellant-Respondent, v. Jimmy FORREST, Respondent-Appellant. . Heard |
Sherwood M. Cleveland and Robert P. Wood, both of Rogers, Thomas, Cleveland, Koon, Waters and Tally, Columbia, for appellant-respondent.
David E. Dukes, of Nelson, Mullins, Riley and Scarborough, Columbia, for respondent-appellant.
Appellant-respondent Haley commenced this collection action against respondent-appellant Forrest, a South Carolina peach grower, for failure to pay on his account. Forrest counterclaimed for breach of contract, breach of warranty, and violation of the South Carolina Unfair Trade Practices Act (UTPA). Both parties appeal the amount of damages awarded. We affirm.
The facts are as follows. Haley is a commercial nursery that supplies fruit trees to farmers. In order to provide farmers with different varieties of peaches, a commercial nursery grafts buds from a peach tree of the desired variety onto rootstock seedlings. The nursery then labels the seedlings, which are as yet unidentifiable by sight, and ships them to the farmer. Typically, a peach tree will leaf the first year, bloom the second, and fruit the third. The only positive means of identifying the tree is to evaluate the fruit it bears, however, leaves and buds give some early indication of variety. For instance, peach trees have either a "showy" or a "non-showy" bloom and observation of the bloom eliminates some of the possible varieties. Similarly, observing whether the leaf glands are "reniform" (kidney-shaped) or "globose" (round) indicates which of several varieties a tree may or may not be.
The dispute in this case involves four shipments of mislabeled trees. Over a period of several years, Forrest ordered peach trees from Haley. In December 1982, he received from Haley 3,500 trees labeled "Springcrest" as ordered and planted them on thirty-five acres for which he holds a fifteen-year lease and a five-year option to renew. In March 1984, when the trees first bloomed, Forrest realized 2,500 of these trees could not be Springcrest because they did not have showy blooms. When Haley was notified, it immediately sent 2,500 replacement trees labeled "Springcrest." Forrest pushed up the original trees at a cost of $225 per acre, re-established the orchard at a cost of $27,000, and replanted the 2,500 trees.
When the replants bloomed one year later, Forrest again realized they could not be Springcrest because they did not have showy blooms. Upon notification, Haley sent an employee to examine the trees who determined they must be "Springbrite" rather than "Springcrest." Haley represented to Forrest that this variety was equivalent to Springcrest and would ripen about the same time. One year later when the trees began to fruit, however, Forrest discovered the peaches were much smaller and more susceptible to bacteriosis than the Springcrest variety.
Two other shipments of mislabeled trees occurred during this same time period. In December 1982, Forrest received 1,000 trees labeled "Rubired" as ordered; in December 1983, he received 1,100 more of the same trees. Forrest planted these trees on land for which he holds a fifteen-year lease. In March 1984, Forrest discovered these trees could not be Rubired because they had showy blooms. Haley sent an employee to examine the trees who concluded they were actually "Windblow," another commercially acceptable variety. When the trees fruited in 1987, however, Forrest discovered they were not Windblow but some unknown variety very susceptible to brown rot.
As a result of these shipments of mislabeled trees, Forrest refused to pay his outstanding bill with Haley and this action ensued. The trial judge directed a verdict for Haley in the collection action and for Forrest for breach of express warranty. The jury returned a verdict of $31,253.00 for Haley, which the trial judge increased to $41,405.35; it awarded Forrest $350,000 on his counterclaim, which the judge reduced to $250,000, and found Haley violated the UTPA. The judge awarded Forrest $50,000 costs and attorney fees under the UTPA.
Haley contends the amount of damages awarded Forrest is excessive.
Forrest offered expert testimony that he lost profits of $317,000 for the 5,000 mislabeled Springcrest trees and $240,000 for the 2,100 mislabeled Rubired trees. These figures were adduced by comparing the net revenue of the yield if the trees had been as warranted to the net revenue of the yield from the trees as delivered, calculated over the fifteen-year life span of the trees.
First, Haley contests the validity of the figures upon which Forrest's expert based his calculations. Haley cites Amerson v. FCX Coop. Service, Inc., 227 S.C. 520, 88 S.E.2d 605 (1955), for the proposition that the measure of damages for crop loss must be calculated using figures for yields of similar crops on adjoining land. This Court modified Amerson in a later case holding evidence to prove crop damage is proper if the crops are similar enough to have a "logical tendency" to prove the probable yield of the crop lost. W. R. Grace & Co. v. LaMunion, 245 S.C. 1, 138 S.E.2d 337 (1964). Forrest's expert, Larry Bower, testified he used price data from the United States Department of Agriculture and the South Carolina Crop Reporting Board. He used cost data from information published by the Agriculture Economics Department of Clemson University. These figures clearly have a logical tendency to prove the probable yield of Forrest's lost peach crop.
Haley further complains the verdict is excessive because Forrest should not be compensated for twelve years of lost revenue, based on the fifteen-year lifespan of the trees, when he can replant and minimize his losses. We agree but find the damages award proper. Haley concedes Forrest is entitled to four years of lost profits for the Springcrest trees and eight years of lost profits for the Rubired trees plus the cost of removal and replanting. (See Appendix). The record indicates the $250,000 remitted verdict is within the range of damages conceded by Haley. See Manning v. City of Columbia, 297 S.C. 451, 377 S.E.2d 335 (1989) ().
Next, Haley contends the trial judge should have granted its motion for directed verdict on the UTPA cause of...
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