Hellenbrand v. Bowar

• Citation: 16 Wis.2d 264,114 N.W.2d 418
• Parties: Mathew HELLENBRAND et al., co-partners, Plaintiffs-Respondents, v. Victor BOWAR, d/b/a Bowars Feed Mill, Defendant-Appellant, I. D. O. Feed and Supply Corp., Impleaded Defendant-Appellant, McKesson & Robbins, Inc., Impleaded Defendant-Appellant.
• Decision Date: 03 April 1962
• Court: United States State Supreme Court of Wisconsin

Page 418

114 N.W.2d 418

16 Wis.2d 264

Mathew HELLENBRAND et al., co-partners, Plaintiffs-Respondents, v. Victor BOWAR, d/b/a Bowars Feed Mill, Defendant-Appellant, I. D. O. Feed and Supply Corp., Impleaded Defendant-Appellant, McKesson & Robbins, Inc., Impleaded Defendant-Appellant.

Supreme Court of Wisconsin.

April 3, 1962.

Rehearing Denied June 6, 1962.

See 115 N.W.2d 533.

The plaintiffs Mathew and Allen Hellenbrand were farmers raising feeder pigs for market and on February 16, 1960, purchased a special feed mixture for lactating sows from the defendant Victor Bowar d/b/a Bowars Feed Mill. Bowar had obtained the additive for hog ration containing thyroactive protein and mixed it with regular feed in the proper proportions. This concentrated additive was purchased by Bowar from I. D. O. Feed and Supply Corporation which had obtained it from McKesson & Robbins, Inc., a distributor of the product for its manufacturer.

A few days after using the feed, the plaintiffs' sows began to dry up and on the fourth day the piglets began dying. The plaintiffs called Bowar who came to the farm and later, after consultation with I. D. O., advised the plaintiffs not to discontinue the special feed and he would bring a new batch, which he did. Matters continued to get worse and the plaintiffs called a veterinarian who called in an expert from the state diagnostic laboratory and both of them came to the farm. The expert advised the plaintiffs to discontinue the feed and later wrote a report which Bowar received. After switching back to their old feed, the plaintiffs had no further trouble with the sows which farrowed thereafter.

Plaintiffs lost 584 piglets and certain farrowing sows because of the use of the special feed mix and brought this suit for breach of warranty against Bower who impleaded and cross-complained against his supplier I. D. O., who, in turn, impleaded and cross-complained against McKesson & Robbins, the distributor. The manufacturer was not impleaded or made a party to the suit. The case was tried to a court and a jury.

In the special verdict consisting of 15 questions, it was found the feed mix, containing the additive which was sold as sow lactation premix, was the cause of the plaintiffs' damages; the plaintiffs had made known to Bowar the purpose for which the feed was required; Bowar had represented the feed would make good food for lactating sows; and the feed was not reasonably fit for the purpose for which it was intended. The verdict also found I. D. O. represented to Bowar the premix was reasonably safe as feed for lactating sows, which was false and which representation was relied upon by Bowar. In respect to McKesson & Robbins, the verdict found it represented to I.D.O. the sow lactation premix would perform well and would stimulate the flow of milk in lactating sows, which was false and which representations I.D.O. relied upon. The plaintiffs' damages were found to be $7,500.

After verdict, the parties made various motions, all of which were denied excepting those for judgments on the verdict. Judgment was then entered in favor of the plaintiffs against Bowar and successively on the cross-complaints against I. D. O. and McKesson & Robbins. All the defendants appealed.

W. L. Jackman, Hart, Kraege, Jackman & Wightman, Madison, for defendant-appellant McKesson & Robbins, Inc.

Petersen, Sutherland, Axley & Brynelson, James C. Herrick, Madison, for defendant-appellant Victor Bowar,

Callahan & Arnold, Columbus, Elton J. Morrison, Portage, of counsel, for defendant-appellant I. D. O. Feed & Supply Corp.

Charles F. Gilkeson, Richard R. Rynders, Madison, for plaintiffs-respondents.

HALLOWS, Justice.

The appellants raise three questions: (1) Was the notice requirement of sec. 121.49, Stats., satisfied, (2) does the evidence sustain the verdict that there was an express warranty by each of the defendants, and (3) is the verdict sustained on the basis of an implied warranty of fitness?

On the motions after verdict for the first time, the question was raised by the defendants that the plaintiffs had not pleaded or proven notice of breach of warranty. This assignment of error goes to the basis of the judgment against Bowar which, in turn, is necessary to sustain the judgments against the other defendants. The giving of the notice required by sec. 121.49, Stats. ¹ is a condition precedent to liability and the failure to do so is fatal to recovery. Schroeder v. Drees (1957), 1 Wis.2d 106, 83 N.W.2d 707; Erickson v. Westfield Milling & Electric Light Co. (1953), 263 Wis. 580, 58 N.W.2d 437; Ace Engineering Co. v. West Bend Malting Co. (1943), 244 Wis. 91, 11 N.W.2d 627; Marsh Wood Products Co. v. Babcock & Wilcox Co. (1932), 207 Wis. 209, 240 N.W. 392. The notice must advise the seller the buyer is looking to him for damages. Schaefer v. Weber (1953), 265 Wis. 160, 60 N.W.2d 696; Marsh Wood Products Co. v. Babcock & Wilcox Co., supra. But the notice is sufficient if it fairly apprises the seller the buyer looks to him for damages, and if the requirements are met, the notice need not be in any particular form. Ace Engineering Co. v. West Bend Malting Co., supra.

Although the notice requirement is a condition precedent to liability and part of the cause of action, it is too late for the defendants now to raise the question as a matter of pleading. Failure to plead the notice would be fatal upon demurrer but the parties have gone to trial and to verdict. Under sec. 263.12, Stats., the defendant waived the objection to the complaint when it was not raised by demurrer or answer, and if this were not so, we would consider at this stage of the proceeding paragraph 10 of the complaint which alleges the plaintiffs made a 'demand on the defendant for damages caused as aforesaid' as being sufficient under our liberal rules of pleadings.

However, the waiver of the pleading does not preclude a challenge to the sufficiency of the evidence to establish a cause of action. The trial court in its memorandum decision stated it had no hesitation in determining that a full and adequate notice as required by the statute was given to the defendant Bowar. This is equivalent of a finding of fact. Morn v. Schalk (1961), 14 Wis.2d 307, 111 N.W.2d 80; Kietlinski v. Interstate Transport Lines (1958), 3 Wis.2d 451, 88 N.W.2d 739.

Appellants claim as error the reliance of the trial court on the pleadings between the defendants in support of its finding. Bowar's cross-complaint against I.D.O. alleged the plaintiffs advised Bower on or about February 25 the sows and piglets were not responding according to warranties made by I.D.O. and, after an agent of I.D.O. checked the sows, the decision was made to abandon the use of the special feed and at that time the plaintiffs advised both Bowar and I.D.O. they would have a loss in connection with the use of the special feed. This allegation was not denied by I.D.O. in its answer. The cross-complaint of I.D.O. against McKesson & Robbins alleged in paragraph seven that in March, 1960, the plaintiffs made a demand for damages upon Bowar who, in turn, notified I.D.O. and, in turn, I.D.O. notified McKesson & Robbins. The trial court, relying on sec. 263.26, Stats., took the position the fact of notice of breach of the warranty was thus established by the record, but it is contended such pleadings were not in evidence and could not be considered to fill a gap in the plaintiffs' proof.

It is true in Simonz v. Brockman (1946), 249 Wis. 50, 23 N.W.2d 464, 24 N.W.2d 409, and Erickson v. Westfield Milling & Electric Light Co. (1953), 263 Wis. 580, 58 N.W.2d 437, the court held the failure to give notice required under sec. 121.49, Stats., could be raised for the first time on appeal and granted a new trial with leave to plead and prove the giving of notice. In those cases there was no proof in the record. In this record, it is clear Bowar at all times knew the special feed was not fulfilling the warranty. He had been out to plaintiffs' farm several times. He consulted with I.D.O. about the matter and advised the plaintiffs to continue with the feed. Both Bowar and I.D.O. had full and ample opportunity and did participate in attempting to determine the cause of the damage. The purpose of a notice of the breach of warranty, which is to permit the seller to investigate the claim and to protect himself, was adequately fulfilled. These facts also alleged in the complaint must be considered with the allegation the plaintiffs made a demand upon the defendant for damages, but payment was not made. This allegation, not being denied by...