Ralston Purina Co. v. Jungers

• Citation: 86 S.D. 583,199 N.W.2d 600
• Decision Date: 26 July 1972
• Docket Number: No. 10966,10966
• Parties: RALSTON PURINA COMPANY, Plaintiff and Appellant, v. Francis H. JUNGERS and Irma Jungers, Defendants and Respondents.
• Court: Supreme Court of South Dakota

Page 600

199 N.W.2d 600

86 S.D. 583

RALSTON PURINA COMPANY, Plaintiff and Appellant, v. Francis H. JUNGERS and Irma Jungers, Defendants and Respondents.

No. 10966.

Supreme Court of South Dakota.

July 26, 1972.

Loucks, Oviatt, Bradshaw & Green, Watertown, for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith by Lawrence L. Piersol, Sioux Falls, for defendants and respondents.

HANSON, Presiding Judge.

The Ralston Purina Company brought this action to recover $6,311.97 on a promissory note executed by defendants, Francis H. Jungers and Irma Jungers, on January 10, 1967. Plaintiff alleged the promissory note represented the balance due for feed furnished defendants in accordance with a cattle feeding contract. Defendants answered and counterclaimed for damages in the amount of $12,000 because of failure of consideration, false representations, negligence, and breach of warranty. Plaintiff's motion for a directed verdict was denied and the issues submitted to the jury which returned a verdict for defendants in the amount of $5,688.03. Plaintiff's subsequent motion for a new trial was denied, however the court ordered a new trial unless defendants consented to a reduction of the judgment to $4,742.16. Defendants consented to the reduction, but the Purina Company refused the remission. A supplemental judgment in the amount of $5,800.73 was then entered from which plaintiff appeals. ¹

There are sharp conflicts in portions of the evidence, all of which the jury apparently resolved in favor of defendants. Viewing the evidence in this light it appears the Jungers are husband and wife who own and operate a farm near Watertown, South Dakota. Their farming operations consist of raising small grain, corn, and livestock. Mr. Jungers has farmed for approximately 35 years and has had considerable experience raising and feeding cattle. The Ralston Purina Company is a manufacturer or producer of livestock feeds.

In 1965 Jungers purchased 180 head of feeder calves. They were all health inspected and vaccinated for anthrax. The cattle were wintered and fed together on silage. In the spring of 1966 Jungers separated approximately 90 head of his cattle for sale as he was getting low on feed. The remainder of the herd was put out to pasture.

Sometime in May 1966, Darrell K. Berglin, a district sales supervisor for the Ralston Purina Company called on Jungers for the purpose of selling a feeding program. Berglin inspected Junger's feeding facilities which appeared adequate and the cattle which appeared healthy. Jungers was told Ralston Purina had a Complete Chow ration available which would enable him to feed out his cattle without additional roughage or feed. He was further advised it would take 140,000 pounds of complete ration to finish feeding out the cattle to the desired market weight of 1050 pounds. Berglin also estimated the cattle would gain at least three pounds per day on the complete ration at a cost of 16 1/2 to 17 cents per pound. Relying on such representations the Jangers signed a Ralston Purina chow contract providing for 140,000 pounds of complete cattle chow at $62.40 per ton, 200 wormers at $50.00 per hundred, and mineral at $6.30 for a total price of $4,515.25.

Jungers started feeding the Purina chow to the 87 head of cattle in the feed lot on May 20, 1966. At the time the average weight of the cattle was 668 pounds. The feed was supplemented by the 12 or 15 ton of silage remaining in the silo which lasted a week or 10 days. By the middle of August Jungers was in need of more feed as the cattle were not up to market weight. Additional Complete Cattle Chow was then contracted for at a higher per ton cost than the original contract price.

On October 12, 1966, 29 head of the cattle were sold to the Swift Packing Plant in Watertown. Two of the cattle were sold to local persons and one was butchered by the Jungers. The remaining 54 head were sold to the Spencer Packing Plant in Iowa on November 2, 1966. Their average weight was 1,018 pounds. The Jungers received a total of $20,629.86 for all the cattle which had been on the Complete Chow feeding program.

Instead of 140,000 pounds of Complete Chow to finish feeding the cattle 312,429 pounds were required. Instead of $4,515.25 originally contracted for, the total cost of the feeding program was $10,232.79. The cost of gain per pound was 32 cents instead of 16 1/2 to 17 cents as represented.

In November and December 1966 the Jungers paid $4,022.19 to the Ralston Company on the feed contract and on January 10, 1967 they executed the promissory note sued upon for the balance of the account in the amount of $6,311.97. No payments on the note were ever made.

The pouches and livers of all the 54 head of cattle sold to the Spencer Packing Plant were condemned by inspectors of the United States Department of Agriculture. The pouch of rumen is the first of four stomach sections of a cow. According to Dr. W. E. Poley, a biochemist and nutrition expert, who testified for defendants, the 100 percent condemnation of livers and pouches in the cattle sold to the Spencer Packing Plant was caused by the Purina Company's Complete Cattle Chow. In explanation of his opinion Dr. Poley testified additional unground roughage should be fed with Complete Chow because finely ground roughage in the feed does not perform the necessary function of coarse roughage in cattle stomachs. Therefore this type of Complete Cattle Chow results in a very high incidence of abscessed livers and rumenitis. Ordinarily there should not be more than a 0 to 5 percent condemnation rate if an adequate amount of additional roughage is fed with the concentrated rations. According to Dr. Poley, cattle with abscessed stomachs will not gain weight as rapidly as healthy animals. There was also evidence the Purina Company was aware of research which indicated danger in fattening cattle with a highly concentrated ration without supplementary...