Tillman & Deal Farm Supply, Inc. v. Deal, 55863

• Decision Date: 15 June 1978
• Docket Number: No. 55863,55863
• Citation: 246 S.E.2d 138,146 Ga.App. 232
• Parties: TILLMAN & DEAL FARM SUPPLY, INC. v. DEAL.
• Court: Georgia Court of Appeals

Page 138

246 S.E.2d 138

146 Ga.App. 232

TILLMAN & DEAL FARM SUPPLY, INC. v. DEAL.

No. 55863.

Court of Appeals of Georgia.

Submitted May 4, 1978.

Decided June 15, 1978.

Anderson & Sanders, Faye Sanders, Statesboro, for appellant.

Allen, Edenfield, Brown & Wright, Charles H. Brown, Statesboro, for appellee.

McMURRAY, Judge.

The operator of a hog farm purchased certain corn to feed his animals. Thereafter, the hogs became sick and many died.

Freddie W. Deal, the operator, as plaintiff sued Tillman & Deal Farm Supply, Inc. for damages resulting from the loss of his hogs, including the incurred cost of veterinary services and medication. By amendment he sued in three counts: Count 1 was for breach of implied warranty that the corn purchased for feed was suitable for feeding to livestock, one of the ordinary purposes for which said goods are used. In Count 2 he sought damages for negligence of the defendant as the cause of the loss of his hogs by reason of alleged contaminated corn containing "aflatoxin." In Count 3 he sought damages resulting from the loss of his hogs as being caused by the contaminated corn which corn was supplied by the defendant "in breach of its express warranty of suitability for feeding to the plaintiff's hogs." The defendant answered denying the claim, admitting only jurisdiction and the sale of certain corn to the plaintiff.

The case proceeded to trial before a jury which returned a verdict against the defendant for the plaintiff in the sum of $9,844.92 with interest and court costs. Whereupon the defendant filed its motion for judgment notwithstanding the verdict and in the alternative a motion for new trial which was later amended. The joint motion was denied after a hearing, and the defendant appeals. Held :

1. The first enumeration of error is concerned with whether the evidence is sufficient to support the verdict. The gist of plaintiff's claim in this case rests on the proposition that his hogs died as a result of eating contaminated corn that was purchased from the defendant. Defendant contends that the contaminated corn was discovered at a later date and after plaintiff had commingled the corn sold by defendant with corn purchased from two other sources. However, plaintiff's evidence established that he had fed the hogs during the period when they were ill with the corn purchased from defendant; that samples of corn provided by other sources were all negative for toxins whereas samples of the corn sold by the defendant and a sample of the feed made from defendant's corn were positive for toxins; and the hogs had not been sick before being fed the feed supplied from corn purchased from defendant, and became sick after eating defendant's corn, and some recovered when the feed was withdrawn. In consideration of all the evidence, we cannot say that the verdict and judgment is not supported by any evidence; hence this court will not disturb the judgment and verdict. Gunter v. Willingham, 116 Ga.App. 700, 702, 158 S.E.2d 255; Marlow v. Burns, 209 Ga. 255, 71 S.E.2d 520; Fowler v. Glover, 105 Ga.App. 216, 217, 123 S.E.2d 903.

2. The second enumeration of error is concerned with the denial of defendant's motion for directed verdict as to Count 3 of the complaint based on express warranty at the conclusion of all the testimony and evidence; and in failing to grant its motion for judgment notwithstanding the verdict as to the same count. An affirmation of fact made by a seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. See Code Ann. § 109A-2-313 (Ga.L.1962, pp. 156, 188); Bell v. Menzies, 110 Ga.App. 436, 437, 138 S.E.2d 731; Key v. Bagen, 136 Ga.App. 373(2), 221 S.E.2d 234....