W & W Livestock Enterprises, Inc. v. Dennler

• Decision Date: 02 September 1970
• Docket Number: No. 54007,54007
• Citation: 179 N.W.2d 484
• Parties: 8 UCC Rep.Serv. 169 W & W LIVESTOCK ENTERPRISES, INC., Appellant, v. Gerald H. DENNLER, Appellee.
• Court: Iowa Supreme Court

Page 484

179 N.W.2d 484

8 UCC Rep.Serv. 169

W & W LIVESTOCK ENTERPRISES, INC., Appellant, v. Gerald H. DENNLER, Appellee.

No. 54007.

Supreme Court of Iowa.

Sept. 2, 1970.

Mershon, Snow & Knock, Cedar Falls, and Stewart, Wimer, Brennan, Joyce & Huff, Des Moines, for appellant.

Richard D. Hermann, Ankeny, for appellee.

LARSON, Justice.

Plaintiff-appellant sought recovery of a sum represented by two checks in the amounts of $8,050.00 and $1,334.00, which checks were given by defendant-appellee in payment for 408 feeder pigs delivered to him pursuant to an oral contract between the parties. The defendant's answer and counterclaim alleged a breach of express oral and implied warranties, for which he asked damages of $15,822.91. Pursuant to trial and after submission of the evidence the court directed a verdict on plaintiff's claim as prayed and submitted defendant's counterclaim to the jury. The jury returned a verdict on the counterclaim in the amount of $8,410.00. Plaintiff's motion for a judgment notwithstanding the verdict and motion for a new trial were overruled by the court and judgments were entered accordingly. This appeal, by plaintiff only, followed. The principal errors assigned challenge the sufficiency of the evidence in at least two respects.

The following involved propositions are deemed so well established that authorities need not be cited to support them. The jury's findings of fact are binding upon us if supported by substantial evidence. In considering plaintiff's motions above referred to, we give the defendant's evidence the most favorable construction it will reasonably bear. Even when facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them, a jury question is engendered. Rule 344(f)(1), (2) and (17), Rules of Civil Procedure. Reed v. Bunger, 255 Iowa 322, 122 N.W.2d 290, considers like questions arising under our sales law, chapter 554, and much of the discussion therein need not be repeated here.

From the record we learn that on or about October 1, 1967, defendant Gerald H. Dennler, an experienced stock feeder, called the plaintiff, W & W Livestock Enterprises, Inc., and informed its agent, Mr. Williams, he was looking for three to four hundred head of feeder pigs but was not in a hurry, that he wanted good clean pigs and would give him a week or two to pick them up. On October 3, 1967, Williams called and said he had 350 'real good pigs' of 80 pounds or more and would send them down by truck the next day. On October 4th the 350 feeder pigs, weighing about 76 pounds each, were delivered to defendant's farm at the agreed price of $23.00 per head. Three days later a second bunch of pigs was delivered, making the total of 408 head. A written bill of sale and conditional guarantee was delivered by the plaintiff with each consignment and signed by Dennler, who after a visual inspection of the pigs issued two checks in full payment therefor, the first in the amount of $8,050.00 and the second for $1,334.00.

A couple of days after delivery of the pigs Dennler testified he noticed blood throughout the pig manure and immediately called in his veterinarian, Dr. Sievers, who diagnosed the ailment affecting these pigs as vibrionic dysentery and prescribed medication. Acting on the advice of his attorney, Dennler then stopped payment on both checks given plaintiff and informed it of the pigs' condition. Two pigs were promptly posted at the Veterinary Diagnostic Laboratory in Ames, Iowa, by Dr. John R. Andersen, who after his post-mortem found two ailments present, pneumonia and necrotic enteritus, also known as 'bloody scours.' Dr. Sievers treated the affected herd until November 7, 1967, and then left some medicine for defendant to continue treatments, which he said he did until the water tank froze in December and he was no longer able to continue. Several qualified veterinarians testified as to the nature of this ailment, its period of germination in pigs contracting the disease, and as to its proper care and treatment. As a result of their alleged diseased condition when delivered, defendant testified he lost 191 out of 408 pigs from October 4, 1967, until they were marketed in February and March of 1968.

In submitting defendant's counterclaim to the jury the court told it that under defendant's paragraph 16, as amended, the proper matters to be considered in determining the damages, if any, were: (a) a sum equal to the difference between the value of the pigs at the time of delivery and the value said pigs would have had if they had been as warranted, in an amount shown by the evidence, but not exceeding $4,370.00; (b) a sum representing the fair and reasonable value of veterinary services and medicines reasonably required in the treatment of the pigs, but not exceeding $444.50; (c) a sum representing the fair and reasonable cost of medication required to be added to the feed of the pigs, but not exceeding $360.00; (d) a sum representing the fair and reasonable value of four 'fat hogs' lost allegedly after the disease was communicated to them, but not exceeding $151.76; (e) the fair and reasonable value of feed fed to pigs that died and excess feed fed to pigs that lived, but not exceeding $3,255.00. These sums were the amounts defendant claimed in his amended petition. Such items of damage we have recognized and approved in several recent cases decided under the applicable chapter 554 of the Code known as the Uniform Commercial Code. Reed v. Bunger, supra; Doden v. Housh, 251 Iowa 1271, 105 N.W.2d 78; Turner v. Kunde, 256 Iowa 835, 128 N.W.2d 196; Drager v. Carlson Hybrid Corn Co., Inc., 244 Iowa 78, 56 N.W.2d 18; Dailey v. Holiday Distributing Corp., 260 Iowa 859, 151 N.W.2d 477.

Appellant does not contend that these are not proper items of loss in cases of this nature, but contends they were not properly before the court because there was insufficient evidence to submit them to the jury. Appellant does not contend it raised any objections as to the competency of the testimony at the time offered, only that under the pleadings it was insufficient to sustain the issues raised by the pleadings. We do not agree.

Appellant's three propositions relied upon for reversal may be summarized as follows: (1) that the trial court should not have submitted item 16b of defendant's counterclaim for the reason that there was no evidence in the record to support the claim; (2) that there was no evidence in the record as to the difference in value of the pigs at the time of delivery and their value had they been as warranted to raise a jury issue; (3) that the trial court erred in submitting the cost of the pigs as the difference in value as warranted and their actual value. The last two we consider together.

I. Appellant argues that paragraph 16b of defendant's original counterclaim claiming loss of expected profits was not a proper measure of damage, that his amendment to 16b stating a proper measure was improperly permitted, and that the measure of damages submitted as feed loss was erroneous and not supported by the evidence. It further argues that the court improperly permitted defendant to plead and prove loss of value of the pigs based upon the purchase price of the animals.

Originally, in paragraph 16b of his counterclaim defendant sought damages in the sum of $4,896.00 for expected profits from the pigs purchased, but at the close of his evidence he asked and was granted leave to amend sub-paragraph b to request recovery for the fair and reasonable cost of excess feed consumed by the pigs that were marketed and also the cost of feed fed to pigs that died, not to exceed $3,255.00. Appellant complains of this grant, even though the trial court pointed out other allegations in the pleadings and considerable evidence in the record which tended to support the allegations in the amendment. We find no error in the consideration of item 16b of defendant's counterclaim as amended.

The trial court has broad discretion in permitting or denying amendments to conform to the proof at the close of all evidence and, unless this discretion is abused, we will not interfere. To allow such amendments is the rule, not the exception. Dailey v. Holiday Distributing Corp., supra, 260 Iowa 859, 865, 151 N.W.2d 477, 482; Claeys v. Moldenschardt, 260 Iowa 36, 41, 148 N.W.2d 479, 483; Durant Elevator Co. v. S. J. Hoffman & Sons, 259 Iowa 500, 503, 145 N.W.2d 25, 26, 27; Rule 88, R.C.P.

True, an amendment to conform to the proof under Rule 88 can be permitted only if it does not substantially change the claim or defense. In granting the amendment here the trial court noted that defendant's original counterclaim had alleged that, because of the diseased condition of the pigs, the defendant had not been able to sell them in January of 1968 as he had planned and as was usual in bringing such feeder pigs to marketable weights, but was forced to hold them until February and March to get them to that weight. In addition, the court noted in defendant's reply to plaintiff's answer he had alleged that, because of the diseased condition of the pigs, he had had to expend more money for feed than ordinarily would have been necessary for feeder pigs of the size purchased from plaintiff. We are satisfied that this amendment in no way prejudiced plaintiff and did not change the claim or defense asserted by the litigants. There was no error in permitting defendant's amendment of paragraph 16b to conform to the proof.

II. We have consistently held that special items, such as feed fed to livestock that die and excess feed fed to diseased livestock that is therefore marketed late, is proper. Turner v. Kunde, supra, 256 Iowa 835, 842, 128 N.W.2d 196, 200; Breitenkamp v. Community Cooperative Association, 253 Iowa 839, 844, 845, 114 N.W.2d 323, 326; Jaeger v. Hackert, 241 Iowa 379, 391, 41 N.W.2d 42, 49. Also see section 554.2715, Code of 1966.

In Turner v. Kunde, supra, we...