Peterson v. Colorado Potato Flake & Mfg. Co.

• Decision Date: 11 December 1967
• Docket Number: No. 21966,21966
• Citation: 164 Colo. 304,435 P.2d 237
• Parties: B. B. PETERSON, and Gene Peterson, d/b/a Peterson & Son of Hillrose, Colorado, Plaintiffs in Error, v. COLORADO POTATO FLAKE & MFG. CO., a corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 237

435 P.2d 237

164 Colo. 304

B. B. PETERSON, and Gene Peterson, d/b/a Peterson & Son of Hillrose, Colorado, Plaintiffs in Error, v. COLORADO POTATO FLAKE & MFG. CO., a corporation, Defendant in Error.

No. 21966.

Supreme Court of Colorado, In Department.

Dec. 11, 1967.

Wells & Snydal, George M. Reddin, Fort Morgan, for plaintiffs in error.

Quigley, Rhodes & Wilder, Norman R. Helwig, Colorado Springs, for defendant in error.

HODGES, Justice.

The plaintiffs in error, B. B. Peterson and Gene Peterson, doing business as Peterson and Son, sought damages in an amount in excess of $38,000 for breach of contract against the defendant in error, Colorado Potato Flake and Mfg. Company, a corporation.

The amended complaint of the Petersons alleged an oral agreement whereby they agreed to sell to the defendant company their entire 1960 potato crop estimated to be 22,900 cwt. at $2.35 per cwt. for potatoes removed from Peterson's premises during the month of November 1960, and $2.40 per cwt. for potatoes removed after December 1, 1960. Defendant company removed approximately 2,810 cwt. of potatoes under this agreement, for which it paid the Petersons $6,894; but, at the end of December 1960, the defendant company notified the Petersons it would not further honor the contract. Thereafter some of the potatoes were sold to third persons for $9,784. The balance of the potatoes could not be sold and were eventually thrown out.

The issues as framed by the pleadings were tried to the court which found in favor of the Petersons and assessed their damages at $8,011. Contending this award of damages is inadequate under the evidence, the Petersons have initiated this writ of error.

The defendant company alleges cross errors, stating the contract was divisible and separable, and therefore was not in its entirety breached; and secondly, the defendant company contends the contract was subject to the express condition that the potatoes be chippable and that the defendant company refused to take further delivery of the potatoes because they were not chippable. On these grounds the defendant company asks that the judgment be reversed.

These cross assignments of error are without merit. The court's findings are adverse to both of the defendant company's contentions, and the record amply supports the court's findings. As to the amount of damages awarded, the defendant company maintains that if it is liable, the damages as awarded were fair and reasonable under the evidence presented.

The sole issue therefore is whether, under the evidence, the $8,011 award of damages by the court is adequate. The trial court in its written findings acknowledges that the Petersons suffered damages in excess of the court's award, but added that there was no satisfactory evidence upon which the court could base another figure without resorting to speculation or arbitrary determination. The Petersons, on the other hand, say that the court's findings and the evidence do indicate several methods of computation which the court could have utilized to ascertain damages which would have more fairly compensated the Petersons for their loss.

An examination of the court's findings pertinent to this issue is therefore essential. In substance the court found:

1. An oral contract between the Petersons and defendant company to purchase Petersons' 1960 potato crop consisting of 20,000 cwt.

2. An agreed price of $2.35 per cwt. for potatoes removed in November 1960; $2.40 per cwt. for potatoes removed in December 1960; and an additional 5 cents per cwt. per month thereafter.

3. That it was agreed the potatoes would be U.S. No. 2 Grade or better; that at a time prior to the first removal of the potatoes by the defendant company there was a sort out of approximately 5% To make U.S. No. 2 Grade or better.

4. That the defendant company did remove a portion of the potatoes for which it paid the Petersons $6,894 at the contract price.

5. That on December 30, 1960 the defendant company rejected the contract and declined to further fulfill its obligations under the contract, and that it thereby breached its contract with the Petersons.

6. That the Petersons made diligent efforts to sell the potatoes remaining after breach, and that some 7,224 cwt. were sold for $9,688 in cash or credit.

7. That the amount of damages awardable is $8,011, which amount is the difference between the actual sale price of the 7,224 cwt. sold by the Petersons after the breach, and the sum which the Petersons would have received if this 7,224 cwt. had been taken by the defendant company at the January 1961 contract price.

Finding No. 7 in particular reveals that no damages were awarded for the loss caused by the non-sale of the balance of the potatoes which had to be thrown out after several months. This balance is readily computable from the court's findings as being slightly under one-half of the 20,000 cwt. originally available under the contract as found by the court. With regard to this the court found 'that there is no evidence of the amount or percentage of sort-out at the time of the first sorting and grading following the termination of the contract from which this quantity might be determined.'

This quantity of unsold potatoes which would meet U.S. No. 2 Grade or better could, in our view, after examining all the testimony, be reasonably estimated at a figure which at least would have given the Petersons a more realistic amount as their damages.

It appears from the findings of the court and the evidence that the initial sort-off on those potatoes first taken by the defendant company was 5%. As a starting point, then, this 5% Could be applied against the 20,000 cwt. There is much testimony about the application of heat to the potatoes...