Patton v. Ballam
| Decision Date | 04 May 1948 |
| Docket Number | No. 1219.,1219. |
| Court | Vermont Supreme Court |
| Parties | PATTON et al. v. BALLAM et al. |
OPINION TEXT STARTS HERE
Exceptions from Windsor County Court; Hughes, Presiding Judge.
Action by George W. Patton and Mildred Patton against Warren E. Ballam and Roy Knights, doing business as Ballam & Knights, Manufacturers, for breach of warranty. Judgment for plaintiffs, and defendants bring exceptions.
Affirmed.
Sterry R. Waterman and John A. Swainbank, both of St. Johnsbury, for plaintiffs.
Ryan, Smith & Carbine, of Rutland, and Finn & Monti, of Barre, for defendants.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
This is an action for breach of warranty. Since 1941 the plaintiffs, who are husband and wife, have operated a mink ranch in Pike, New Hampshire, for the purpose of breeding and raising mink for their fur. The defendants have also engaged in a like business at West Hartford for the past 10 or 11 years, and for the same period of time have manufactured a complete mink food for their own mink, and have sold and distributed this food to a number of mink raisers in Vermont and New Hampshire. The plaintiffs have purchased this food from the defendants, and have used it exclusively since they went into the mink business, and were so using it during 1946. During that year the plaintiffs suffered great losses, which they claim resulted because such food was not sufficiently nutritious and did not contain the proper elements to enable the mother mink to give birth to sufficiently healthy kits, and to give the kits during the nursing period sufficient and proper sustenance in the way of milk to enable them to live and mature porperly. From a verdict and judgment for the plaintiffs the defendants have excepted. As to the breach of warranty the only question here in dispute is whether plaintiffs' losses are attributable to such food.
Viewed most favorably to the plaintiffs the evidence reasonably tended to show the following additional facts: Mink breed once a year in March, and the kits in litters averaging four to a litter are born between the middle of April and the end of May. The kits are left with their mothers for a nursing period of six to seven weeks, after which they are separated from them and reared in individual furring pens until the pelting season late in the fall. In the 1946 season the plaintiffs had 104 female breeders, to which were born 365 kits. An unusually large number of these kits died during the nursing period, and only 65 survived at the time of separation, and these did not grow up to normal size, and their pelts were small and of poor quality at pelting time. The defendants in 1946 fed their mink food to their mink and had more than normal losses, and as litter after litter were lost decided that there was something wrong. Another mink raiser in Pike, New Hampshire, who fed this food to his mink in 1946 had about 60 kits born and only 10 survived until pelting time. A mink raiser in Randolph, who fed this food that season to his mink, only raised approximately 70 kits to grow up from approximately 100 litters. During the period of a month from birth dead kits were scattered from one end of his ranch to the other, in the nests, on the ground, in the pens and on the wire. As a rule this mink food consisted of horse meat, fish, cereal, vegetables, organ meats such as spleen or liver, and cod liver oil. During 1946 frozen tripe and later on fresh tripe was used. The process followed in preparing the food was to grind and mix the ingredients into 700 pound batches. After the process was completed the mixture was frozen into 25 pound cakes, and then stored not exceeding 3 weeks in a frozen condition until delivered to customers. In cold weather deliveries were made once in two weeks, and in warm weather once a week. When the plaintiffs received their mink food they put it in a refrigerator, which held it between 24 and 30 degrees. When they were ready to use some they chopped it up in a pan and thawed it out before feeding. It was fed to their mink on top of the wire over the next box, where the mink could reach up and take it. During the 1946 breeding season there was a change in the consistency of the food delivered to the plaintiffs, and it was softer and would not stay on the wire, and the mink didn't like it and wouldn't eat it until so starved that they had to. In addition to the foregoing are the facts which the admissions of the defendants and the testimony of Richard Pastene, hereinafter mentioned, tended to show.
Richard Pastene, who raised mink at Norwich and mixed his own mink food, testified, subject to exception, that in January, 1946, he and the defendants bought a car load of frozen tripe, each taking half of it. He began to use his half about the middle of February, and at whelping time lost breeding females and kits. By a process of elimination he ascertained that when he stopped using the tripe his difficulty cleared up. This evidence was received subject to showing that tripe from this car load was used in the mink food which the plaintiffs were receiving at a time that it might have caused their difficulties. At the close of all the evidence defendants moved to have it struck out because it had not been connected up, and excepted to the denial of their motion. It was shown that a part of defendants' share of this car load of tripe was placed in their refrigerator at West Hartford with other frozen tripe, from which tripe was taken and mixed in their mink food. In the very last of May or the first of June, defendant Knights came to plaintiffs' place, and they complained to him about the quality of the food, and he noticed its sloppy condition and said that they were investigating and doing what they could, and when they found out anything they would let them know. Later he told them that the defendants bought a car load of tripe and used up a part of it in their mink food and discovered that it was spoiled, and they figured that the plaintiffs got food that had it in it, and they thought that tripe was the ingredient that was giving the trouble. Defendant Ballam testified that he decided that it was tripe that had caused the trouble, and that several of their customers lost mink that year. No question is raised in defendants' brief that these admissions were incompetent evidence, all that is said about them is that they add nothing to the weight of plaintiffs' evidence, and were conflicting, indefinite, and obviously based upon surmise and conjecture to such a degree as to make them inadequate bases to support the verdict. There is neither argument nor citation of authority to support this claim. In view of the defendants' long experience and their means of knowing how the mink food was prepared and their discovery that the tripe was spoiled, it can hardly be said that their conclusions were based upon conjecture and surmise, so as to have no weight in tending to show the cause of plaintiffs' losses. Since, so far as appears from defendants' brief, evidence of these admissions came in without objection upon the ground of competency, it was for consideration by the trial court and jury although largely matter of opinion or conclusion. Dieter v. Scott, 110 Vt. 376, 383, 9 A.2d 95; 53 Am.Jur., Trial, § 351. See also annotation, 120 A.L.R. 213-217. This evidence affords sufficient proof that tripe from the car load purchased by Pastene and the defendants was used in the mink food which plaintiffs were receiving at a time that it might have caused their trouble. Our attention, however, is called to the testimony of Donald Ballam, called as a witness by plaintiffs. He was the son of defendant Ballam and one of the foremen at defendants' mink food plant. According to his testimony on cross-examination by defendants, no frozen tripe was put into the mink food after about the middle of March, after which fresh tripe was used. Allowing for the maximum storage time before distribution of three weeks, and two weeks between deliveries, no mink food with frozen tripe in it could have been fed to plaintiffs' mink more than five...
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