Topeka Mill & Elevator Co. v. Triplett, 37641

• Decision Date: 28 January 1950
• Docket Number: No. 37641,37641
• Parties: TOPEKA MILL & ELEVATOR CO. v. TRIPLETT et al.
• Court: Kansas Supreme Court

Page 964

213 P.2d 964

168 Kan. 428

TOPEKA MILL & ELEVATOR CO. v. TRIPLETT et al.

No. 37641.

Supreme Court of Kansas.

Jan. 28, 1950.

Rehearing Denied March 17, 1950.

Syllabus by the Court.

1. An express warranty excludes an implied warranty relating to the same subject.

2. No technical or particular words need be used to constitute an express warranty, yet whatever words are used must substantially mean the seller promises or undertakes to insure that certain facts are, or shall be, as he represents them.

3. Representations of fact capable of determination are warranties but mere expressions of opinion, belief, judgment or estimte by a dealer in sales talk are not.

4. The reason underlying the rule which limits warranties by dealers to representations of fact concerning the nature or quality of goods sold is that there is nothing on which people are more apt to differ and nothing on which they are less apt to trust each other than a dealer's expression of opinion.

5. The modern tendency, to which this court is committed, is to hold dealers to a stricter accountability than formerly for fair dealing with customers. In order, however, for affirmations of fact by a dealer to be actionable, on the theory of an express warranty, the customer must buy in reliance on the affirmation.

6. Where opinions are coupled with representations of fact the opinions are not actionable as warranties but the representations of fact are.

7. Statements of dealers with respect to the comparative value of an article or product, absent all representation as to particular facts, ordinarily are not regarded as warranties.

8. The record in a cross action by a purchaser of chicken feed to recover damages from the seller for breach of an express warranty examined, and held: The evidence failed to establish (1) an express warranty; and (2) reliance thereon.

Jacob A. Dickinson, of Topeka, and Edward Rooney and David Prager, both of Topeka, on the brief for appellants.

John S. Dean, Jr., of Topeka, for appellee.

WEDELL, Justice.

This action originated as one to recover the balance due on an account for the sale of chicken feed. Defendants filed an answer and cross petition in which they denied owing the plaintiff and sought damages from plaintiff by reason of alleged false and fraudulent representations concerning the feed in the sum of $7,500.

On the trial defendants stipulated if they were indebted to plaintiff in any amount then the amount sought by it, $2,077.63, was correct. The trial court sustained a demurrer to defendants' evidence. From that ruling and the order overruling their motion for a new trial defendants appeal. Our concern is, therefore, limited solely to a consideration of defendants' cross action for damages.

Claude H. Triplett and M. Esther Triplett, doing business as the Triplett Leghorn Farm, appellants, were the purchasers of the feed. The Topeka Mill and Elevator Company, appellee, was the seller of the deed.

In their cross petition appellants, in substance, alleged: They raised Leghorn chickens for the purpose of producing and selling eggs and breeding Leghorn chickens; they built up their own strain of pedigreed stock under the supervision of the United States government pursuant to which a 'record of performance' of each chicken was kept and maintained; prior to June 1944, they used Purina feed and had a high 'record of performance'; in June, 1944, O. J. Halstead, the agent and employee of appellee, represented to them that if they would use feed manufactured and furnished by appellee their production and 'record of performance' would be maintained at its high level or increased; in reliance upon the representations they commenced to use appellee's feed; in December, 1944, the production and 'record of performance' of the chickens fell off; they learned appellee was leaving certain ingredients out of the feed; they notified appellee of these facts; Paul Bailey, manager, and Frank Bryan, assistant manager, of appellee, falsely and fraudulently and with intent to induce appellants to continue use of the feed, represented that if appellants would continue its use the quality of the feed would immediately increase and the results would be as good as they ever had been and as they were when appellants used Purina; the representations were false and known to be so; appellants relied upon the representations but the 'record of performance' continued to decrease; they were unable to reproduce chickens from high producing ancestry and hence were unable to sell reproduced chickens at the high price they would have been able to do had the feed been as represented; as a result of the false and fraudulent representations made with the intent to defraud and to cause them to use the inferior feed appellants were damaged in the sum of $7,500.

We come now to the subject of proof. We shall endeavor to state the developments in their chronological order as nearly as the record permits.

The evidence, in substance, was: Appellants' business, a partnership, is owned by Mr. and Mrs. C. H. Triplett; Mrs. Triplett and a son, Roger, operated the business; Mrs. Triplett had been a poultry breeder for twelve years and since 1941 had carried on a 'record of performance' production; O. J. Halstead, a salesman for appellee, was familiar with her record; Halstead first talked to her about changing from Purina to appellee's feed 'Sun Gold' which she could purchase for somewhat less than Purina by getting it at wholesale prices; Halstead first suggested the change to her in June, 1944; he told her the feed could be bought for less than Purina and that appellee guaranteed it to give as good results as Purina; Halstead called on appellants about every week; she did not make the change in June but did make it three or four months later; (some testimony indicates the change was made in August, 1944) Mrs. Triplett was the one who determined what feed to buy and to make the change; she finally decided to try the feed; appellants used the feed from August, 1944, to February, 1947, a period of approximately two years and seven months; they obtained good results from it for four to six months; in the summer of 1945 they noticed a change in the color, feel and smell of the feed; Mrs. Triplett complained to Halstead about it in the summer or fall of 1945 and he said the feed had been cheapened, that Jersey Balancer, which was a trade name for a mineral concentrate, had been left out; at the time Halstead so advised her he was no longer an employee of appellee; the feed had a yeasty smell and chickens did not like it; each bag of feed had a tag attached, as required by law, showing an analysis of the feed; Mrs. Triplett had six or eight conferences with representatives of the mill about the change in the feed; she talked to Mr. Bailey, Mr. Bryan and Doctor Alford; Mr. Bailey told her on two or three occasions they expected to improve the feed, that they expected to increase the quality of the feed; this was the extent of the representations he made; Doctor Alford, appellee's veterinarian, told her appellee's feed was a balanced ration, the roosters were eating too much of the feed, the hen house was not clean enough, he thought the chickens were wormy, the feed was a balanced feed and they should not feed them buttermilk; appellants continued to feed the chickens buttermilk.

Mrs. Triplett was asked why she continued to use the feed until February 1947, if she had discovered in the summer of 1945 the feed was not as represented. Her answer was: 'Well, after we had a bill with the feed company we didn't them, and then they told us, of course, that like to quit their feed as long as we owed the feed would be better and we could go go ahead, so we just strung along with them thinking they would hit on something that would bring our flock back up.'

Mrs. Triplett further testified, in substance: Immediately prior to switching back to Purina in February, 1947, they conducted a test with two pens of birds; in one pen they followed the recommendations made by appellee and had no results; in the other pen they fed the chickens Purina and within thirty days' time the chickens began to pick up and doubled their egg production.

Roger Triplett testified Halstead tried to induce appellants to use 'Sun Gold' feed and stated it would do as good a job, or better, than Purina and at less cost. Roger's testimony was much the same as his mother's testimony with respect to first noticing the effect on the chickens but he stated that was in the latter part of 1945 and that he overheard a conversation at appellee's mill between Mr. Bailey, Mr. Bryan and a Mr. Faviro which disclosed Jersey Balancer had been left out of the feed in the first part of 1945. On cross-examination he testified appellee stopped using Jersey Balancer in the spring of 1946.

He further testified, in substance: The next major change he noticed in the feed was in the summer of 1946 when he opened some feed and it smelled moldy and old; he returned it to the mill and complained to Mr. Bryan; Mr. Bryan told him the feed was neither old nor moldy, that a yeast enzyme was being put into the feed but it would make no change in its effectiveness; he (Roger) had noticed a change in the color and texture of the feed during the summer, fall and winter of 1946; he had numerous conferences with representatives of the mill concerning the feed; Mr. Bryan and Doctor Alford came to make an inspection; Doctor Alford stated the hen houses were not clean enough, that buttermilk would throw the quality of 'Sun Gold' feed off balance, and he felt the chickens were wormy but had no definite way of knowing they were wormy; he (Roger) examined the chickens for worms and found none but did not examine them for cecal worms which are invisible to the naked eye; as he remembered it they had carried out all of Doctor Alford's suggestions except the one to stop feeding butterwilk; Doctor Alford said...