Rasmus v. AO Smith Corporation, Civ. No. 962.

• Citation: 158 F. Supp. 70
• Decision Date: 13 January 1958
• Docket Number: Civ. No. 962.
• Parties: Clarence RASMUS, Plaintiff, v. A. O. SMITH CORPORATION, a corporation, Defendant.
• Court: U.S. District Court — Northern District of Iowa

158 F. Supp. 70

Clarence RASMUS, Plaintiff, v. A. O. SMITH CORPORATION, a corporation, Defendant.

Civ. No. 962.

United States District Court N. D. Iowa, W. D.

January 13, 1958.

COPYRIGHT MATERIAL OMITTED

Justus R. Miller (of Miller, Miller & Miller), Cherokee, Iowa, for plaintiff.

John W. Gleysteen, Eskil M. Nelson (of Harper, Gleysteen & Nelson), Sioux City, Iowa, Norman Quale, Milwaukee, Wis., for defendant.

GRAVEN, District Judge.

In this action the plaintiff seeks to recover damages for breach of warranty in connection with the sale to him by the defendant of a structure designed for farm storage purposes. The trial was to the Court. The plaintiff is a citizen of the State of Iowa. For the past several years he has been farming a farm owned by him in the vicinity of the City of Cherokee, Cherokee County, Iowa.

The defendant is a corporation organized under the laws of the State of New York. Its principal place of business is at Milwaukee, Wisconsin. It is licensed to do business in the State of Iowa. Among its activities is the manufacture and sale of a structure designed for the storage of farm products to which it has given the name of "Harvestore."

Corn in the field usually has a fairly high moisture content. The amount of such moisture conditions depends upon the growing season and fall weather conditions. The closer corn is contained the greater is the likelihood of spoilage if its moisture content is above certain recognized minimums. If corn in the field has an unusually high moisture content it may spoil even when stored in ear form in the usual type of corn crib. Where the moisture content of newly harvested corn does not exceed 22 per cent it may ordinarily be safely stored in the conventional type of corn crib. Storage of such corn in the conventional type of corn crib for a period of time will usually result in such a reduction in its moisture content that it may then be shelled and stored in bins or sold in ordinary commercial channels. In order to be stored in shelled form it must have a fairly low moisture content. Ordinarily newly harvested corn will have a moisture content of from 18 to 20 per cent. The higher the moisture content of corn the lower will be its grade. Ordinarily corn having a moisture content in excess of 14 per cent cannot be stored in shelled form without danger of spoiling. Corn having a moisture content of 14 per cent or less is regarded as low moisture content corn. It is possible to reduce the moisture content of corn so as to raise its grade, make it safe for storage, and salable in ordinary commercial channels by means of mechanical drying. Such drying is a matter of some expense. Ordinarily the moisture content of corn at harvest time is such that it cannot be sold in ordinary commercial channels or stored in shelled form in bins. The price of corn in the fall is usually much lower than it is from March on in the following year.

The defendant's structure is designed for the storage of different kinds and types of farm products. It is cylindrical in form and similar in appearance to a silo. It is largely designed to provide hermetic or sealed storage for farm products. The bin is constructed of steel sheets with a fused glass coating bonded to the surface. The bin is erected upon a concrete base and has a concrete floor. The steel sheets lay over each other and are bolted into place. Sealing mastic is applied between the lapped and bolted joints. There are two doors on the top and one on the side near the top which may be opened for filling purposes. There is provision for an opening near the bottom for discharging by means of mechanical equipment. The filling and discharge openings are fitted with gasketed closures so as to maintain sealed conditions. To avoid the danger of collapse or rupture of the bin due to pressure differences from temperature changes, withdrawal from the bin or other causes, a large plastic bag, referred to as the "breather bag," is suspended under the roof. When the pressure inside the bin is reduced, air is drawn into the bag. If the pressure increases, the bag is deflated without exchange of air in contact with the stored product. Large changes in pressure are accommodated by a relief valve which permits gas to escape or air to enter when the pressure difference reaches a predetermined amount. Bins of this type have been marketed since about 1945. They have been marketed by the defendant since 1950. They are designed for the storage of different farm products. Spoilage of corn is primarily due to the flourishing of microorganisms. They tend to flourish in corn which has a fairly high moisture content. They flourish more rapidly when such corn is stored in containers which greatly restrict air circulation. Under suitable conditions the microorganisms respire. In so doing they consume oxygen. Their consumption of oxygen gives off carbon dioxide. Carbon dioxide is heavier than air and if contained it replaces oxygen in the crevices of stored corn and forms a blanket on top of it. When the kernels of corn are entirely surrounded by carbon dioxide they are shut off from oxygen and the microorganisms in the kernels cannot respire and spoilage is arrested.

The defendant's storage bin is designed to make use of that feature in connection with the storage of corn having a sufficiently high moisture content to generate carbon dioxide protection. When one of the doors at the top of the defendant's bin is opened for filling purposes oxygen comes into it from the top and continues to come in until the door is closed. Since carbon dioxide is heavier than air it does not tend to escape upward during the temporary opening of a door at the top and ordinarily the air coming in through the opening does not diffuse the carbon dioxide protection given to the corn already in the bin. After a top door is closed after being opened for filling, carbon dioxide protection builds up for the newly stored corn. Since carbon dioxide settles to the lower part of the bin it quite readily escapes when an opening is available at or near the bottom. When it so escapes it is replaced by oxygen which starts respiration by the microorganisms and consequent spoilage to the stored corn.

The defendant's bin was also designed for the storage of so-called dry or low moisture content corn, i. e., corn having a moisture content of below 14 per cent. Where the moisture content of corn is below 14 per cent the microorganisms will not respire and no carbon dioxide will be given off. In such cases the stored corn will not have carbon dioxide protection. When so-called dry or low moisture content corn is stored in one of the defendant's bins the bin must be equipped with a recirculating system. The recirculating system consists of a motor operated fan which is designed to move the air downward through the corn and return the air to the top again. The principal purpose of the recirculating system is to prevent the accumulation of outside moisture.

The defendant had a display at the 1953 Iowa State Fair advertising its Harvestore bin. It there came to the attention of the plaintiff. Later he learned that Arthur Linder, a farmer living near Hartley, Iowa, had two of the defendant's bins. He went to the Linder farm to examine the bins. While there he visited with Mr. Linder. Mr. Linder had found that the bins stored high moisture content corn satisfactorily. He also had found that high moisture content corn stored in the bins acquired a sweet smell and sweet taste and was well liked by cattle.

During the summer of 1955 the plaintiff noticed and read a piece of literature advertising the defendant's bin at the place of business of the Cherokee Implement Company in Cherokee. A copy of that piece of literature was introduced into evidence. At the time he was in the place of business of the Cherokee Implement Company he did not discuss the bin. The Cherokee Implement Company is a dealer in farm implements. Elmer Johnson is one of its salesmen. In July 1955 Howard L. Peterson was in the employ of the defendant as a salesman. He had been in its employ in such capacity since 1950.

In 1955 the plaintiff was about 47 years of age and had been engaged in farming for about five years. The farm owned and operated by him consisted of 460 acres. It contained 320 acres of tillable land and 140 acres of pasture. Prior to engaging in farming he had operated a truck line for about 19 years. Two of the principal activities of the plaintiff in connection with his farming operations have been the raising of corn and the feeding of cattle. Prior to 1953 he normally fed from 200 to 250 head of cattle. In July 1955 he sustained a heart attack. Thereafter he reduced his cattle feeding operations. In the fall of 1955 he was feeding around 75 head of cattle. The principal feeds fed by him to the cattle were silage and corn. In 1955 he had two silos on his farm. He also had several corn cribs for the storage of ear corn. The defendant's bin is suitable for the storage of silage but the plaintiff in 1955 had no need of additional storage space for silage. Following his heart attack the plaintiff installed equipment by means of which silage was augered from the silos into the feed bunks. That equipment saved handling silage by hand.

On July 25th, 1955, Howard L. Peterson, accompanied by Elmer Johnson, called on the plaintiff at his farm for the purpose of selling him one of the defendant's bins. The plaintiff told them he was desirous of having proper storage facilities for high moisture content corn raised by him and purchased by him. He informed them that he wished to use a picker-sheller to harvest the corn raised by him and store the shelled corn. He also informed them that he wished to purchase high moisture content corn in the fall when the price was low and store such corn in shelled form. He also informed them that he wished to feed about half of the stored corn and sell the remaining half in...