Jorritsma v. Farmers' Feed & Supply Co., Inc.

CourtSupreme Court of Oregon
Citation538 P.2d 61,272 Or. 499,75 Or.Adv.Sh. 2525
Parties, 17 UCC Rep.Serv. 696 David JORRITSMA, Respondent, v. FARMERS' FEED & SUPPLY COMPANY, INC., Appellant.
Decision Date17 July 1975

Page 61

538 P.2d 61
272 Or. 499, 17 UCC Rep.Serv. 696
David JORRITSMA, Respondent,
Supreme Court of Oregon, In Banc.
Argued and Submitted June 3, 1975.
Decided July 17, 1975.

[272 Or. 502]

Page 63

J. D. Bailey, Schwenn, Bradley, Batchelor & Bailey, Hillsboro, argued the cause and filed the brief for appellant.

Keith D. Evans, Salem, argued the cause and filed the brief for respondent.

TONGUE, Justice.

This is an action for damages for breach of warranty by a dairy farmer against a feed processor and supplier. The complaint alleges breach of both an express warranty that the feed contained at least 16 per cent protein and an implied warranty that 'it was of merchantable quality and reasonably fit and suitable for its general purpose and ordinary use and the commercial feeding of dairy cattle.' The case was tried before the court, sitting without a jury. The court made a general finding of fact in favor of plaintiff and entered judgment in the sum of $8,338.78. 1 Defendant appeals.

[1,2] Because we must consider a finding of fact in an action at law by a court, sitting without a jury, the same as the verdict of a jury, we must affirm such a finding if supported by any substantial evidence. Cronn v. Fisher, 245 Or. 407, 415, 422 P.2d 276 (1966). For the same reasons, we must give plaintiff the benefit of all favorable evidence and of all favorable inferences which may be reasonably drawn from such evidence. Emerson v. Western Photo-Mount Co., 267 [272 Or. 503] Or. 562, 564, 518 P.2d 171 (1974). Cf. Pakos v. Clark, 253 Or. 113, 116, 453 P.2d 682 (1969).

1. The evidence was insufficient to establish an express warranty.

Plaintiff's complaint alleged:

'That in October, 1971, the defendant's representative induced the plaintiff to buy a dairy mix feed produced by the defendant company upon the express representation that said feed was good and suitable dairy feed containing at least 16% Protein.'

Defendant's first assignment of error is that the trial court erred in holding that defendant expressly warranted to the plaintiff that the feed defendant delivered to the plaintiff had a protein content of not less than 16 per cent. 2 A consideration of that assignment of error requires a review of the evidence on this issue.

Plaintiff is a dairy farmer near Aurora. Before September 1971 he purchased from Purina a feed consisting of a mix of pellets and rolled grain with a 16 per cent protein content. Because Purina then raised its price, plaintiff called James Larkins, an employee of defendant, and asked 'what he wanted for his 16 percent protein dairy mix.' Mr. Larkins then quoted a price agreeable to plaintiff.

The first load delivered by defendant, however, was not a 'mix,' but consisted of pellets only, with an invoice for '16 (per cent) dairy (feed).' Plaintiff then told Mr. Larkins that he was 'feeding coarse' and was told by Larkins that the next load would be 'coarse, rolled mix grain in it.'

[272 Or. 504] The subsequent deliveries were made with 'delivery slips' or invoices listing

Page 64

'16% Pellets' and 'roll mix' in various proportions, ranging from '3/5 16%' and '2/5 roll mix' in October 1971 to '6 ton 16%' and '5 T rolled mix' in February 1972. Attached to most of these invoices was a printed 'card' or 'tag' with the heading 'TOP NOTCH 16% Dairy Feed,' stating that the 'guaranteed analysis' included 'Crude Protein, not less than 16.00 (per cent)' and listing the various ingredients.

Plaintiff testified that in ordering and accepting these subsequent deliveries he was 'of the understanding that it was 16 per cent feed just the same,' i.e., that the total 'mix,' including the added rolled grain, had a 16 per cent protein content. He acknowledged, however, that he never asked what was the protein content of either the total 'mix' or the added rolled grain and also did not discuss the proportion of the 'mix' of 16 per cent pellets and rolled grain.

In February 1972, after his milk production had dropped and after experiencing other problems described below, plaintiff had the feed tested. These tests showed that the total 'mix' had a protein content of between 11 and 12 per cent. In late February plaintiff showed the results of these tests to Mr. Larkins and was told that the total mix did not have a 16 per cent protein content because the rolled grain 'never went over 9 or 10% Protein.' Plaintiff testified that this was the first time that he was aware of that fact.

Defendant's witnesses testified that defendant sold dairy feed with varying protein contents, ranging from 9 to 16 per cent; that the 'tag' describing the 'TOP NOTCH 16% Dairy Feed' and its ingredients referred to the pellets only, as required by law; that there is no such requirement for a 'tag' stating the protein content and ingredients of the rolled grain; [272 Or. 505] that different dairy farmers desired different 'mixes,' with different proportions of pellets and rolled grain; that more 'high energy low protein' feed was sold than any other kind; that it would have been 'simple' to prepare a 'mix' with a 16 per cent protein content, but that plaintiff made no such request.

On this state of the record we hold that there was no substantial evidence to support plaintiff's contention that defendant made an express warranty to him, within the requirements of the Uniform Commercial Code, ORS 72.3130, 3 that the dairy feed delivered to him, including both pellets and rolled grain, had a protein content of not less than 16 per cent.

As stated in the 'Comment' included in the '1958 Official Text' at the time of the adoption of that statute in Oregon:

'ORS 72.3130 deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a [272 Or. 506] negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. * * *'

To the same effect, as stated in A. A. Baxter Corp. v. Colt Industries, Inc., 10

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Cal.App.3d 144, 88 Cal.Rptr. 842 (1970), at 153--54, 88 Cal.Rptr. at 848:

'A warranty is as much one of the elements of sale and as much a part of the contract of sale as any other portion of the contract and is not a mere collateral undertaking (citing cases).

'There is a definite distinction between a fraudulent representation and a warranty. A fraudulent representation is an antecedent statement made as an inducement to the contract, but is not a part or element of the contract. On the other hand, to constitute an express warranty, the statement must be a part of the contract. (Citing cases)'

As also stated in Atlanta Tallow Co. v. John W. Eshelman & Sons, Inc., 110 Ga.App. 737, 140 S.E.2d 118, 127 (1964):

'* * * An express warranty is a contract, and in order for a petition to set forth a cause of action based thereon it is essential that it show that both parties to the alleged contract understood and agreed to the same thing. * * *'

Cf. Klimek v. Perisich, 231 Or. 71, 78--80, 371 P.2d 956 (1962).

Thus, although an express warranty may not be a separate contract, it is a part of the contract of sale. As such, if it appears from the evidence that the parties did not 'understand and agree to the same thing,' it necessarily follows that the plaintiff has failed to sustain his burden of proof to establish the existence of an express warranty.

Plaintiff relies on two facts to establish an [272 Or. 507] express warranty: First, the fact that when plaintiff initially ordered feed from defendant he requested that it have a 16 per cent protein content; and, Second, the fact that each delivery of feed was accompanied by a 'tag' which was labeled '16% DAIRY FEED.'

The first fact--that plaintiff had ordered 16 per cent feed--would, on its face, appear to be a 'descripton of the goods' establishing an express warranty under ORS 72.3130(1)(b). A specific order for feed with a 16 per cent protein content would, if accepted, be sufficient to establish that protein content as part of the basis of the bargain. In response to that order, however, defendant delivered a load of feed consisting entirely of pellets with a protein content of 16 per cent. Plaintiff seeks no damages as a result of that first delivery in October 1971.

Upon receiving that first delivery of feed and realizing that it consisted entirely of pellets, plaintiff then asked that future deliveries contain rolled grain as well. When he thus modified his original order by requesting a mix 'of pellets and rolled grain,' plaintiff did not reassert his demand for a 16 per cent 'feed' and defendant made no express representation that the 'mix' as subsequently delivered contained 16 per cent protein. Although plaintiff testified that He understood he was receiving that percentage, that evidence was insufficient to establish that Both parties had such an understanding, as necessary in this case to sustain plaintiff's contention that defendant expressly warranted that the feed contained at least 16 per cent...

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