Vanadium Corp. of America v. Wesco Stores Co., 17837

• Decision Date: 18 March 1957
• Docket Number: No. 17837,17837
• Parties: VANADIUM CORPORATION OF AMERICA, a Delaware corporation, Plaintiff in Error, v. WESCO STORES COMPANY, a Colorado corporation, and Andy Voytilla, Defendants in Error.
• Court: Colorado Supreme Court

Page 1011

308 P.2d 1011

135 Colo. 77

VANADIUM CORPORATION OF AMERICA, a Delaware corporation, Plaintiff in Error, v. WESCO STORES COMPANY, a Colorado corporation, and Andy

Voytilla, Defendants in Error.

No. 17837.

Supreme Court of Colorado, In Department.

March 18, 1957.

Rehearing Denied April 10, 1957.

Holland & Hart, Robert P. Davison, Denver, for plaintiff in error.

George V. Kempf, Hughes & Bjelland, Montrose, for defendants in error.

HALL, Justice.

This action was brought by Wesco Stores Company, plaintiff in the trial court, (herein referred to as Wesco), against Voytilla, (defendant in the trial court and defendant in error here,) to recover the sum of $2,942.83, being the agreed price of 271 dressed turkeys sold by Wesco to Voytilla, which turkeys were, pursuant to orders from Voytilla, delivered by Wesco to Vanadium Corporation of America (herein referred to as Vanadium, third party defendant in the trial court and plaintiff in error here). Voytilla filed his third party complaint against Vanadium to recover the sum of $3,079.07, being the price which Vanadium agreed to pay to Voytilla for the same 271 turkeys.

In answer to Wesco's complaint, Voytilla admitted the purchase of the turkeys from Wesco but alleged that the turkeys delivered were decomposed and unfit for human consumption, whereas his purchase agreement with Wesco called for delivery of turkeys in first class condition.

Vanadium in answer to Voytilla's third party complaint admits that it contracted with Voytilla for the purchase of a quantity of turkeys for Christmas gifts for its employees but alleges that the 271 turkeys tendered to it at Durango were spoiled and unfit for human consumption because of careless and improper preparation and shipment by Voytilla.

The evidence is not in dispute. About December 1, 1952 Vanadium contacted Voytilla seeking to purchase 400 dressed turkeys, each weighing about 20 pounds, at the price of 56 1/2cents per pound delivered at Naturita and Durango, Colorado, delivery to be on or about December 18th. Voytilla promptly contacted Wesco and offered 54cents per pound for the turkeys needed; Wesco promptly contacted Summer Hatchery and agreed to purchase the required turkeys from that firm for 52cents per pound, the same to be eviscerated, packed in vacuum bags and delivered unfrozen to Wesco at Uncompahgre, Colorado. Wesco then agreed to sell and deliver the 400 turkeys to Voytilla at Nucla, Colorado. Wesco had no facilities for freezing the turkeys, Voytilla had such facilities. Voytilla then accepted the order of Vanadium. There was no agreement between Voytilla and Vanadium as to whether the turkeys should be frozen or unfrozen.

On December 10, 1952 Summer delivered to Wesco 137 unfrozen turkeys, dressed and packed in vacuum bags. On December 11, 1952 these 137 unfrozen turkeys were delivered by Wesco to Voytilla at Nucla; Voytilla immediately froze the turkeys and they were delivered to Vanadium at Naturita for distribution to its employees. These 137 turkeys were accepted and paid for without complaint.

During the evenings of December 11th and 12th Summer delivered an additional 271 turkeys to Wesco. These turkeys had been processed by Sumner on the 11th and 12th in the same manner as had the 137 turkeys delivered by Sumner to Wesco on the 10th. Sumner instructed Wesco that these turkeys should be 'quick frozen' immediately. Wesco placed the 271 turkeys in an unrefrigerated warehouse where they remained until packed in boxes and placed in a cooler; the last of them being boxed and placed in the cooler on the 14th. Wesco did not freeze these turkeys, and pursuant to instructions from Voytilla delivered the turkeys to The Durango Ice and Produce Company at about 9:00 o'clock P.M. December 15th. It is admitted that Durango Ice and Produce Co. acted as agent for Vanadium in receiving, caring for and distributing the turkeys. In making this delivery Wesco had the turkeys loaded on one of its insulated trucks about noon of the 15th. At the time the boxes were put in the truck the outside temperature was above freezing, the truck was partially loaded with potatoes and was equipped with a heater to prevent freezing. The evidence is uncontradicted that the heater was not used on the trip to Durango. The temperature in the area covered by the truck on the 15th was a high of 45~ and a low of 18~.

On delivery of the turkeys at Durango, The Durango Ice and Produce Co. placed them in an unheated hallway where they remained from about 9:00 P.M. of December 15th until about 10:00 A.M. of the 16th--during this period the outside temperature was about 20~ and the temperature in the hallway between 20~ and 30~. At about 10:00 A.M. on December 16th The Durango Ice and Produce Co., pursuant to orders from Vanadium, placed the turkeys in its freezer room for freezing. The temperature in this room was from zero to 5~ below, the boxes were stacked high on dollies; were not opened and later the same day were re-arranged and staggered so the cold air could circulate around them. Some of the turkeys were never frozen inside. On December 20th distribution of the turkeys to Vandium employees was started. Upon opening the bags it was then discovered that the turkeys were spoiled, unfit for human consumption, and on orders of The Colorado Department of Agriculture were destroyed.

The evidence shows that proper procedure for processing and preserving turkeys calls for removal of all body heat promptly after killing, evisceration, placing in a vacuum bag to prevent discoloration and dehydration, keeping in a cooler at a temperature below 35~. So cared for, the turkeys should keep for at least ten days. An alternate proper procedure calls for 'sharp' or 'quick' freezing immediately following removal of all body heat, evisceration and packaging as outlined above. 'Sharp' or 'quick' freezing is best accomplished by placing the birds in a cooler at a temperature of 25~ to 30~ below zero until frozen solid, thereafter to be kept at temperatures below freezing. Turkeys so handled keep indefinitely and are not subject to spoilage until lapse of a reasonable time after thawing.

Trial was to the court. The court found the issues in favor of Wesco and against Voytilla and entered judgment in favor of Wesco for $2,942.83. The court also found the issues on Voytilla's third party complaint in favor of Voytilla and against Vanadium and entered judgment in favor of Voytilla against Vanadium for $2,942.83. There is presented to this court for review only the question of the correctness of the judgment of Voytilla against Vanadium.

The contract of purchase and sale entered into by Voytilla and Vanadium does not specify whether the turkeys should be frozen or unfrozen. Time for delivery was not definitely fixed, and though it would appear that the parties probably intended delivery on the 18th, Vanadium did not in any manner protest the delivery on the 15th.

The evidence is uncertain, inconclusive and leaves much to be desired in determining the difficult question of fact involved. One thing is certain; the turkeys were spoiled five days after delivery to The Durango Ice and Produce Company,...