White v. Oregon Horticultural Supply, Inc., 417-776

Citation594 P.2d 1321,40 Or.App. 323
Decision Date14 May 1979
Docket NumberNo. 417-776,417-776
PartiesJohn S. WHITE and Nan R. White, d/b/a White's Hydroculture, Respondents, v. OREGON HORTICULTURAL SUPPLY, INC., an Oregon Corporation, Appellant. OREGON HORTICULTURAL SUPPLY, INC., an Oregon Corporation, Cross-Claimant, v. PLANT PRODUCTS CORP., a New York Corporation, Cross-Defendant. ; CA 10388.
CourtCourt of Appeals of Oregon

John A. Schiewe, Portland, argued the cause and filed the brief for appellant.

Alonzo P. Stiner, Portland, argued the cause for respondents. With him on the brief was Lovett & Stiner, P. C., Portland.

Before SCHWAB, C. J., and THORNTON, LEE and GILLETTE, JJ.

GILLETTE, Judge.

This is an action by the owners of a hydroponic tomato growing business against the retail suppliers of a fumigant called VAPONA for an alleged breach of implied warranty of merchantability and implied warranty of fitness for a particular purpose.

At trial defendant moved for a directed verdict on the issue of damages, arguing that there was insufficient evidence to justify submitting plaintiff's claim for lost profits to the jury. The trial court denied the motion. Instead, upon plaintiff's motion, the trial judge directed a verdict in favor of plaintiffs on the issue of liability and submitted to the jury the issue of damages. The jury returned a verdict for plaintiffs in the amount of $13,952. Defendant assigns the denial of its motion as error. We agree with defendant that the trial court erred in submitting the issue of lost profits to the jury and therefore reverse. Because of our disposition of the issue of damages, we do not reach the three additional assignments of error made by defendant.

In early 1974, Mr. and Mrs. White (plaintiffs) decided to enter the hydroponic tomato-growing business. They planted their first crop of tomatoes in July 1974, and harvested their first tomatoes on October 15, 1974. On November 12, 1974, upon advice by defendants, plaintiffs used a fumigant called VAPONA in an attempt to control a white fly infestation problem. The leaves of the tomato plants were badly burned allegedly as a result of the use of VAPONA. Plaintiffs attempted to salvage the plants by the addition of nutrients and fertilizer, but tomato production dropped and the tomatoes that were subsequently produced by the plants were of poor quality and misshapen. Plaintiffs continued, however, to harvest and sell tomatoes until August 1975, when they "pulled" the plants. They planted their second crop nine months later in April 1976. Plaintiffs harvested their first tomatoes from the 1976 crop in June; full production was reached in July and August. In September 1976, plaintiffs sold their greenhouse.

Plaintiffs are seeking reimbursement for the amount of profits they lost on the 1974-75 crop of tomatoes due to the damage alleged caused by VAPONA. Plaintiffs argued they could have expected the tomato plants to produce 5,000 pounds of tomatoes per month over the 10 month period from November 1974 to August 1975 (which is the production life of hydroponic tomato plants). Plaintiffs estimated the market price for that time period to be 41 cents per pound, which would amount to gross income of $20,500, and, after expenses, net profits of approximately $15,000. The issue raised on this appeal is whether plaintiffs offered sufficient evidence to support their estimate of a 5,000 lbs. per month production rate and a 41 cents per lb. market price.

Plaintiffs did not establish with any degree of certainty the amount of tomatoes they were capable of harvesting per month over a 10 month span of time. Their records indicated only the amount of tomatoes sold for the period from October 15 to November 19, 1974. After that date, the receipts of sale placed in evidence by plaintiffs do not consistently indicate the price paid per pound of tomatoes, but instead state the price paid per box. Because the box size varies, the amount of tomatoes sold cannot be ascertained. Nor was there any testimony by other growers or experts in the field as to what sort of production might be expected with plaintiff's operation. Plaintiff's estimate of production at 5,000 lbs. per month is supported only by plaintiff's records for 2 months of production in 1976 a year later. Plaintiffs planted their second crop in April 1976, harvested their first tomatoes in June and reached full production in July and August of 1976. Plaintiff's records indicate that plaintiffs sold 10,000 lbs. of tomatoes during July and August. This is not a reliable figure from which to establish an average 10 months production rate for the period in 1975, however, because there was undisputed testimony that July and August are peak production months owing to longer daylight hours.

Neither did plaintiffs present adequate data to permit the jury to establish the average market price of tomatoes during the period in question. Mrs. White testified that the market price generally for the months of November and December is 50 cents per pound and that it is less in the late summer months. She also testified that the market price for October 1974 was 40 cents per pound. The records offered by plaintiffs, however, did not support that estimate, but rather indicate that market price from October 15 through November 12, 1974, averaged 32 cents per pound. The records did not indicate market price for the period from...

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6 cases
  • Sunnyland Farms Inc. v. Cent. N.M. Electric Coop. Inc.
    • United States
    • Court of Appeals of New Mexico
    • May 17, 2011
    ...“[t]his element of damages is recoverable only if the business was previously established”); White v. Oregon Horticultural Supply, Inc., 40 Or.App. 323, 594 P.2d 1321, 1323 (1979) (addressing the sufficiency of evidence of crop yield of a hydroponic tomato farm and holding that the experien......
  • Sunnyland Farms Inc v. Cent. N.M. Electric Coop. Inc, Docket No. 28,807
    • United States
    • Court of Appeals of New Mexico
    • March 24, 2011
    ..."[t]his element of damages is recoverable only if the business was previously established"); White v. Oregon Horticultural Supply, Inc., 594 P.2d 1321, 1323 (Or. Ct. App. 1979) (addressing the sufficiency of evidence of crop yield of a hydroponic tomato farm and holding that the experience ......
  • SDS Lumber Co. v. Allendale Mut. Ins. Co., Civ. No. 81-485BU.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • May 6, 1983
    ...track record. See Western Energy, Inc. v. Georgia Pacific Corp., 55 Or.App. 138, 637 P.2d 223 (1981); White v. Oregon Horticultural Supply, Inc., 40 Or.App. 323, 594 P.2d 1321 (1979). With a hypothetical starting point and with hypothetical production, SDS's business interruption loss was n......
  • Albin Elevator Co. v. Pavlica, 5651
    • United States
    • United States State Supreme Court of Wyoming
    • July 26, 1982
    ...Commercial Code. White and Summers, Uniform Commercial Code § 10-4, p. 391 (2nd Ed. 1980). See also: White v. Oregon Horticultural Supply, 40 Or.App. 323, 594 P.2d 1321 (1979); Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Golden Gate Hop Ranch, Inc. v. Velsicol C......
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