Western Feed Co. v. Heidloff

• Decision Date: 28 March 1962
• Citation: 370 P.2d 612,230 Or. 324
• Parties: WESTERN FEED COMPANY, a corporation, Appellant, v. B. F. HEIDLOFF, Respondent.
• Court: Oregon Supreme Court

Page 612

370 P.2d 612

230 Or. 324

WESTERN FEED COMPANY, a corporation, Appellant, v. B. F. HEIDLOFF, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 6, 1961.

Decided March 28, 1962.

James H. Clarke, Portland, argued the cause for appellant. With him on the brief were Koerner, Young, McCollogh & Desendorf and Herbert H. Anderson, Portland.

No appearance for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, a livestock feed merchant, from the judgment entered in an action which it brought against the defendant, a farmer, to recover the 'agreed and reasonable' value of pig feed and other farm supplies delivered by the plaintiff to the defendant between February 9, 1959, and July 11, 1959. The complaint alleged that the goods had a value of $2,220.16 of which $709.69 had been paid. The prayer was for $1,510.47 and interest.

The answer was a general denial followed by a 'further answer and counterclaim.' The latter alleged that the defendant was a farmer who devoted a part of his operation to raising pigs for sale. It stated that the farm was visited by the plaintiff on or about January 2, 1959, and that the plaintiff then made an extensive investigation, after which the parties entered into a contract. By the terms of the latter the plaintiff agreed to supply 'all necessary feed, advice on feeding, guidance on production and general advice as to the latest methods and practices of hog raising' and the defendant agreed to purchase from the plaintiff the feed prescribed by it. Continuing, the defendant averred the agreed contract price per ton of various kinds of feed, listed several items which he found to be satisfactory and paid for, and arrived at an unpaid balance of $1,596.35. The defendant alleged that he was induced to enter into the agreement in reliance upon 'representations and warranties' that the feed would be 'of good quality, nutritious and palatable,' and that it was 'designed to produce one pound of growth for each three pounds of feed after the pigs were weaned.' The defendant alleged that he informed the plaintiff that 'he would have approximately 100 head of pigs to raise from birth.' He charged a breach of all the alleged warranties and averred that by reason of them 'the pigs became ill and * * * did not gain one pound for each three pounds of feed consumed' with resulting damages of $2,591.44 from which the defendant subtracted the 'agreed contract price of $1,596.35' to arrive at $995.00 for which he demanded judgment. The reply denied the averments of the counterclaim except as alleged in the complaint.

The case was tried by a jury and judgment was entered upon its verdict denying affirmative relief to either party.

The plaintiff first assigns as error the trial judge's denial of its motion for a directed verdict; the motion was as follows:

'Plaintiff moves for a directed verdict against the defendant for the sum of $1,510.47 prayed for in this complaint, based upon his admission that said sum is due and owing.'

The motion was presented with a second one for a directed verdict against the defendant on his counterclaim. The trial judge appears to have considered the two motions as a single motion, and denied them as one. However, in instructing the jury he did, in fact, direct a verdict in favor of the plaintiff for at least the amount sought as damages by the complaint. After instructing the jurors that they must choose between the defendant's counterclaim, which alleged an express contract price of $1,596.35 for feed, and the plaintiff's complaint, which alleged an unpaid balance of $1,510.47, the judge instructed the jury:

'So in this case, there would be a sum due and owing of at least--for the lesser amount at least, of $1,510.47, unless you find that there has been a breach of warranty and that the defendant is entitled to either a setoff or a judgment in excess of the amount of the price of the feed.'

In connection with this assignment of error the plaintiff urges that the jury, by its verdict, decided against the defendant on the counterclaim and hence, necessarily, against the plaintiff on his claim. The court instructed the jury on a form of verdict in the following manner:

'I have prepared two forms of verdict. If you find the plaintiff is entitled to recover, Western Feed, your verdict will read as follows: 'We, the jury, being duly impaneled and sworn to try the above-named action, do find a verdict in favor of the plaintiff in the sum' of blank dollars which you would have signed by your foreman and returned back into court.

'If you find the defendant is entitled to a verdict, it would read: 'We, the jury, being duly impaneled and sworn to try the above named action, do find our verdict for the defendant on his counterclaim in the sum of' blank dollars * * *.'

At this point the court asked counsel if they noticed any part of the charge that required correction or anything that was 'left out.' After a brief conference the court further instructed the jury:

'Ladies and gentlemen, if you found that neither party was entitled to recover in the case, then the verdict would be a general verdict without damages to the defendant.'

The jury returned the following verdict:

'We, the jury, being duly impaneled and sworn to try the above named action, do find our verdict in favor of the defendant.'

If the jury instructions regarding the form of verdict are read without reference to the other instructions, the plaintiff's contention that the verdict denied both parties a recovery upon their respective claims would have greater force. However, since the court instructed the jury that it must allow damages to the plaintiff unless such damages were set off or exceeded by the defendant's damages, the verdict can only be construed as setting off the claims of the parties in equal amounts.

Under the instructions the jury was required to find that the plaintiff's minimum damages were $1,510.47. We must presume that it assessed his damages in at least that amount. This, however, was the amount demanded by the complaint and by the motion for a directed verdict. The first assignment of error is without merit.

The plaintiff next assigns as error the trial court's denial of its motion for a directed verdict in its favor and against the defendant on the counterclaim. The motion is as follows:

'The plaintiff further moves for a directed verdict against the defendant on the defendant's counterclaim for the reason and upon the ground that there is no satisfactory evidence that the plaintiff agreed to supply feed which would produce one pound of growth for three pounds of feed; and for the further reason that there is no satisfactory evidence that the plaintiff failed to supply defendant with feed that was of good quality and palatable and designed to produce one pound of growth for each three pounds of feed after the pigs were weaned; and for the further reason that there is no satisfactory evidence of any damage for any breach of warranty, or for breach of contract. There is no evidence in this case of any valuation of any property if it had been as warranted or of any valuation of any property as it actually existed. * * *'

On this appeal the plaintiff has abandoned the first ground of its motion--that there was no evidence 'the plaintiff agreed to supply feed which would produce one pound of growth for three pounds of feed'--but contends that the motion should have been granted upon the remaining grounds.

The plaintiff views the counterclaim as an action for breach of express warranties and we think this is correct. The defendant alleged in his counterclaim that he was induced to contract with the plaintiff for the purchase of feed 'by reason of his reliance upon the following representations and warranties: That the feed would be of good quality, nutritious and palatable; and that it was designed to produce one pound of growth for each three pounds of feed after the pigs were weaned.' (Italics supplied) The italicised word originally was 'promises,' but was amended on the day of the trial at the suggestion of the trial judge. We think it is clear, therefore, that the counterclaim relies upon express representations and express warranties, and makes no claim for breach of implied warranties. Uniform Sales Act, ORS 75.140 and 75.150.

The defendant failed to prove that the feed in question was not 'designed to produce one pound of growth for each three pounds of feed.' He testified that the plaintiff told him 'it would take three pounds of their feed to make a pound of gain,' but proof that merchandise does not in a single instance produce a desired result is not evidence that it was not designed to do so.

A more difficult question is presented by the plaintiff's assertion that there was no satisfactory evidence to prove the feed was not 'of good quality and palatable.' On this appeal the plaintiff also questions the sufficiency of the proof that an express warranty of palatability was made, but inasmuch as the motion for a directed verdict did not raise the issue it cannot be considered here. Woods v. Dixon, 193 Or. 681, 240 P.2d 520 (1952); Edvalson v. Swick, 190 Or. 473, 227 P.2d 183 (1951); Bergholtz v. Oregon City, 116 Or. 18, 240 P. 225 (1925).

Evidence was received tending to show that the defendant began fattening his pigs on the plaintiff's feed early in March, 1959. The date is variously given as March 4 or March 9. According to the testimony of the defendant and others, the pigs commenced to 'fight the feed,' they rooted it out of the feed trough and refused to eat it. A few days after the pigs were placed on the feed they developed scours, which further retarded growth. The defendant testified that the feed was the cause of the scours, and that the condition cleared up when he changed from the plaintiff's feed to another brand. June 29, 1959, a pig...