Ralston Purina Co. v. Novak

• Decision Date: 31 May 1940
• Docket Number: No. 11646.,11646.
• Parties: RALSTON PURINA CO. v. NOVAK.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F.2d 631 (1940)

RALSTON PURINA CO. v. NOVAK.

No. 11646.

Circuit Court of Appeals, Eighth Circuit.

May 8, 1940.

Rehearing Denied May 31, 1940.

Winthrop B. Lane, of Omaha, Neb. (Cottrell Fox, of St. Louis, Mo., and Arthur R. Wells and Paul L. Martin, both of Omaha, Neb., on the brief), for appellant.

Alfred C. Munger, of Omaha, Neb., and Robert R. Moodie, of West Point, Neb., for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This was an action at law brought by the appellant as plaintiff to recover a balance due on the agreed purchase price of a certain consignment of hog feed which it had sold and delivered to the appellee. We shall refer to the parties as they were designated below.

The total purchase price was $6,120, on which there had been paid $3,519.15, leaving a balance due of $2,600.85. Defendant answered, alleging that the sale had been induced by false and fraudulent representations; that the hog feed was not as warranted but was worthless. He then counter-claimed for damages because of the alleged fraud, alleging that as the result of using the feed his hogs became ill and eighty-five of them died, and that he necessarily expended certain sums of money in medicine in his attempt to save the remaining hogs; that the feed was not suitable nor safe for use for the purpose of feeding and fattening hogs. He alleged that the plaintiff had represented and warranted that the feed was of excellent quality and could be fed exclusively or as the principal feed to his hogs; that it was nutritious and of such quality as hog feed and as a fattener that 300 pounds of it would produce 100 pounds of pork upon his hogs; that it was perfectly safe to use this feed exclusively or in combination with any other feed; that its quality was superior to corn for the purpose of fattening hogs. Other representations and warranties were pleaded, and it was alleged that the representations and warranties pleaded induced defendant to purchase, and that they were false; that he gave notice to plaintiff promptly upon discovering the injurious effects caused by the feed, threatened to rescind his purchase and to discontinue the use of the feed, but plaintiff had assured him that the death and sickness of the hogs was due to other causes and insisted that he continue to use it and that such continued use would produce the results originally warranted; that he made various complaints during the time he was experimenting with the feed, but was persuaded by plaintiff's agents to continue using the same as the principal feed for his hogs. Defendant alleged that he had been damaged "by the difference between the value of said hog feed at the time of its delivery to the defendant and the value said hog feed would have had if it had been as represented and warranted; that said hog feed was worthless for the intended use, and if it had been as represented it would have had a value of $9,363.00. And in addition thereto defendant had been damaged by being forced to purchase medicines at a total cost of $225.00 and to use the same for said hogs * * *." He alleged that his total damage was $9,588, for which amount he prayed judgment.¹

Substantial testimony produced by the defendant tended to sustain all the material allegations of his counter-claim. He had lived on a farm and engaged in farming all his life and was experienced in raising and feeding hogs for the market. The drought of 1936 practically destroyed crops in the country where he lived and he was without the usual corn to carry on hog feeding operations. He had had no experience with the use of this commercial hog feed, and he relied wholly on the representations made to him by plaintiff's salesmen relative to its qualities. These salesmen made the representations alleged in the complaint. Induced by such representations and warranties, defendant ordered 100 tons of this commercial hog feed and bought 300 pigs to feed. During his feeding operations 85 head of hogs died, and when the remaining 215 head were sold they weighed an average of 153 pounds each, and were sold for the net amount of $3,151.95, all of which was taken by plaintiff to apply on the purchase price of the commercial feed. There was testimony showing that the hogs were, before being fed this commercial feed, healthy normal hogs and not suffering from disease. After being so fed, they became ill and eventually became weaker and weaker, until many of them died.

At the close of defendant's testimony introduced in support of his counter-claim, plaintiff interposed a motion for a directed verdict, which was overruled, whereupon plaintiff introduced evidence in rebuttal. Plaintiff did not renew its motion for a directed verdict at the close of all the evidence. The court submitted the case to the jury on the theory that there were two causes of action, one alleged in plaintiff's complaint, and the other in defendant's counter-claim. On plaintiff's cause of action, the jury returned a verdict in favor of defendant. On defendant's counter-claim, the jury found for defendant and assessed his damages in the sum of $1,949. The court thereupon entered judgment for that amount with costs, from which judgment plaintiff prosecutes this appeal.

Appellant, under its "Points to be Argued," urges the following contentions: (1) Pleadings are addressed to and are for the court and not the jury. The issues for the jury are determined by the pleadings, evidence, and law applicable to the case. Incorporating the pleadings into the instructions given to the jury is to be condemned, and if the pleadings contain allegations not proved, or if the pleadings are redundant or ambiguous, and contain evidentiary matter, the giving of the instruction is prejudicial. (2) The plaintiff as a matter of law was entitled to a judgment on its petition for the unpaid balance of the purchase price. When a buyer accepts and retains goods purchased from a seller, he must pay the purchase price and may then counterclaim or sue for damages for breach of warranty if the goods delivered do not fulfill the warranty. (3) Under the provisions of the Uniform Sales Act, there is no implied warranty of fitness for any particular purpose when goods are sold under their patent or trade names. Also when a definite known article is ordered by a buyer and furnished by a seller there is no implied warranty. (4) A warranty to be binding upon a principal must be authorized or ratified by the principal. The principal, by accepting an order obtained by an agent and delivering the goods without knowledge of an unauthorized warranty by the agent, does not ratify the unauthorized act or make the warranty binding upon the principal. Also the retention of the purchase price after the situation has so changed that the parties can not be returned to their original status does not constitute ratification. (5) There is no actionable warranty established in the case at bar. No affirmation of value of goods nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty. (6) Evidence does not establish a breach of warranty. The jury is not permitted to consider the outcome of the defendant's feeding operations without proof as to the proximate cause of the same. The proximate cause must be shown by competent evidence and not left to mere speculation. (7) All contemporaneous or prior oral representations or warranties leading up to the execution of a written contract are merged in the final written contract and can not be shown by parol evidence. (8) The measure of general damages for breach of warranty for quality is the difference between the value of the goods at the time and place of delivery and the value they would have had if they had been as warranted. When goods consist of merchandise sold generally in commerce, the test of value is the market value. (9) A certified copy of a chattel mortgage which is admissible in evidence under the statutes and practice in Nebraska is admissible in the Federal Court held in Nebraska. (10) The declarations of an alleged agent are not admissible to prove the fact or extent of his agency.

It seems necessary to give some attention to the condition of the record. In the foregoing "Points to be Argued," counsel do not point to any specific or concrete action of the court to which these "Points to be Argued" are pertinent. Nor are we advised where in the record any rulings of the court are to be found which it is claimed in these points were erroneous, nor are we advised in what manner it is claimed the court erred. Proposition No. 1 would seem to have reference to the action of the lower court in incorporating the pleadings into the instructions given to the jury. But there is no exception to the instructions on this ground, and no complaint seems to have been made in the lower court with reference to the alleged action of the court in so doing. If we concede the correctness of the proposition in the abstract, it has no bearing on the issues presented.

Proposition No. 2 charges that the plaintiff was entitled to judgment on its petition for the unpaid balance of the purchase price as a matter of law, but here, again, no ruling of the court on this question is presented by the record. The only possible basis for the argument is that the court erred in denying plaintiff's motion for a directed verdict. But the motion for a directed verdict was not renewed at the close of all the evidence, and hence, it was waived. The overruling of a motion for a directed verdict is waived if the party making it afterwards introduces evidence in his own behalf. Concordia Fire Ins. Co. v. Commercial Bank, 8 Cir., 39 F.2d 826; Bank Sav. Life Ins. Co. v. Butler, 8 Cir., 38 F.2d 972; Bell v. Union Pacific R. Co., 8 Cir., 194 F. 366; White v. United States, 10 Cir., 48 F.2d 178.

The sufficiency of the evidence to sustain the judgment is therefore not open to review....