Woodruff v. Clark County Farm Bureau Co-op. Ass'n

• Citation: 286 N.E.2d 188,153 Ind.App. 31
• Decision Date: 14 August 1972
• Docket Number: No. 671A120,671A120
• Parties: , 11 UCC Rep.Serv. 498 Kenneth WOODRUFF, Appellant (Plaintiff Below), v. CLARK COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, Inc., et al., Appellees(Defendants Below).
• Court: Indiana Appellate Court

Page 188

286 N.E.2d 188

153 Ind.App. 31, 11 UCC Rep.Serv. 498

Kenneth WOODRUFF, Appellant (Plaintiff Below), v. CLARK COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, Inc., et al., Appellees(Defendants Below).

No. 671A120.

Court of Appeals of Indiana, Second District.

Aug. 14, 1972.

Rex P. Killian, Indianapolis, for appellant; Ruckelshaus, Bobbitt & O'Connor, Indianapolis, of counsel.

Larry R. Fisher, Lafayette, for appellees; Stuart, Branigin, Ricks & Schilling, Lafayette, of counsel.

BUCHANAN, Presiding Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a summary judgment entered against plaintiff-appellant, Kenneth Woodruff (Woodruff), on his Complaint for damages for breach of warranty, misrepresentation, and fraud arising from the sale of chickens to Woodruff by defendants-appellees Clark County, Jackson County, and Indiana Farm Bureau Cooperative Associations, Inc. (Farm Bureau) and Glen L. Searcy (Searcy).

From 1945 until 1960 Woodruff was engaged in the business of raising broiler chickens near Remington, Indiana. In 1960 he phased out his broiler business and began raising chickens for the production of eggs. While Woodruff had no formal education in poultry science, he was capable of performing limited postmortems on his own chickens to determine the cause of death. In addition, Woodruff also attended some short courses on poultry science and egg grading at Purdue University lasting from two to two and one-half days.

In July of 1964, Ken Bowlin (Bowlin), a Farm Bureau representative, discovered that Woodruff intended to replace his flock of chickens. Farm Bureau did not have any chickens in Woodruff's area, but Bowlin contacted Woodruff in an attempt to persuade him to try Farm Bureau chickens.

As a consequence of this initial conversation, Woodruff met with Searcy and other Farm Bureau representatives at Indianapolis and travelled to the Clark County Farm Bureau to observe its flock of chickens. While at the Clark County Farm, Woodruff observed that the chickens were out of feed and that they were 'congested'. Woodruff considered the Clark County facilities inadequate compared to modern poultry facilities. After viewing these conditions Woodruff testified that he was assured by Farm Bureau that he would get only the good chickens and that 'they would do a good job in my chicken-house'.

Woodruff further noted that he did not raise any questions at the Clark County farm regarding vaccination or mortality rates because he had confidence in Farm Bureau and that it was customary for chicken farmers to vaccinate against coccidiosis at an early stage. He presumed that 'they had been in it for a long time and they certainly had brains enough to know what to do, and it was not for me to ask about it.'

Following the examination of the Clark County chickens, Woodruff and the Farm Bureau representatives travelled to Jackson County, where they viewed another flock of chickens. Woodruff again observed that the chicken feeders were empty, the chickens were badly stunted and their feathers were ruffled. While he generally condemned the Jackson County operation, the response to his comments at Jackson County was much the same as at the Clark County farm--that he would get only the good chickens, 'that the chickens would be culled' and he 'would get only good birds'.

After observing the Jackson County birds, Woodruff and the Farm Bureau representatives drove back to Indianapolis. At some time during the return trip to Indianapolis, Farm Bureau and Woodruff entered into an oral agreement whereby Woodruff agreed to purchase chickens from Farm Bureau for $1.55 per chicken.

On July 23, 1964 the chickens were delivered to Woodruff with Mr. Wayne Isaacs, of the Farm Bureau, present. A total of 7,622 chickens were shown delivered on the receipts hereinafter referred to, and Woodruff and the delivery man culled unacceptable chickens and returned them to Farm Bureau. Woodruff himself culled approximately 1,400 chickens out of the total delivered, and the delivery man also culled chickens found to be unacceptable. Woodruff did understand that he could return any of them that appeared to be unacceptable. At the time of delivery Woodruff was advised that the chickens would develop in the proper manner i.e. that they would 'bloom out or straighten up and fly right':

'* * * I was led with the idea that they would--what they call 'bloom out' or straighten up and fly right and so forth, you know, when they got more space and back on full feed because at that time they were attempting to produce these chickens with a restricted feeding program. They said, 'After you get them on full feed their weight will pick up, you know, and their feathers will tighten up and they will go on from there', but the case didn't develop this way.'

At the time of delivery, Woodruff was asked by the delivery man to sign the following two documents 'to show delivery,' both of which were entitled 'Started Pullet Delivery and Acceptance Receipt', (the receipts), and were identical except as to the filled-in blanks:

DEFENDANT'S EXHIBIT I

STARTED PULLET DELIVERY AND ACCEPTANCE RECEIPT

7--23--64

Pullets Grown and Delivered by Clark Co. F.B. Co-Op.

Pullets Inspected by Ray Durin

Delivered to Kenneth Woodruff

Received from Clark Co. F.B. Co.-Op. 4120 (Number) pullets (22 wks.) in good condition. It is understood and agreed that no representations are made as to the present or future health and well being, or freedom from any disease of any pullets sold, and that upon accepting delivery, Purchaser shall have no recourse to Seller or Grower and by such acceptance admits that no warranties, express or implied, have been made by the Seller or Grower as to the Quality or condition of the pullets immediately before housing. Unless pullets are rejected by Purchaser for good cause shown, they shall be deemed to be accepted in an 'as is' condition. Grower or Seller does not warrant these pullets to be free of any disease, or detrimental condition, the existence of which could not be ascertained at the time of delivery, nor shall Seller or Grower be responsible for damages, if any, from flock contamination caused or alleged to have been caused by such disease.

_ _

(Paid)

(signed) Kenneth J. Woodruff

(Signature of Purchaser)

Defendant's Exhibit 2, is identical to Exhibit 1 except the blank spaces were filled in as follows:

Line 1--Date: 7--24--64

Line 2--Jackson Co. F.B. Co-Op.

Line 3--Wayne Isaacs

Line 5--Jackson Co. F.B. Co-Op. (Number) 3502

Line 6--Age 21

While Woodruff acknowledged that both receipts bore his signature, in his deposition he recalled the facts surrounding the signing of these documents this way:

Q. Now, Mr. Woodruff, this is . . . Exhibits 1 and 2 were documents that were given to you and which you looked at before you signed, isn't this right?

A. Not that I recall. I don't recall even seeing them.

Q. You are saying that you have never seen those documents before?

A. I never read them over, so help me.

Q. Are you in the habit of signing a document that is a page long and almost completely all typed without reading it?

A. A good percentage of the time this is done when you have confidence in the people with whom you are dealing.

Q. Did you discuss those documents with Wayne Isaacs?

A. I did not. I didn't even recall seeing them.

Q. Did Wayne Isaacs indicate to you the contents of those documents?

A. No. I don't even know whether Wayne Isaacs had them or if Glen Searcy had them. To the best of my knowledge, this is the first time I have seen them. It is definitely the first time I read them. As to who had them when I apparently signed them is beyond me. That sales ticket you have in your hand . . .

As the chickens progressed in age many of them were dying, so in the early part of August 1964, Woodruff contacted Bowlin concerning the mortality rate. At Bowlin's insistence, Woodruff called the Indianapolis Farm Bureau office and requested that someone examine the chickens. Subsequently, Searcy and two other Farm Bureau representatives visited Woodruff and concluded that the chickens were in no great danger. Nevertheless, the high mortality rate continued, so Woodruff again contacted Farm Bureau representatives, who returned a second time to examine the chickens. At the second meeting, Woodruff was asked if he was using anything in his feed for coccidiosis. Woodruff replied:

'I've got nothing in my feed for coccidiosis; when chickens get this age you are not supposed to have anything in your feed for coccidiosis. Any normal chicken from any reputable company will have their immunity by the time they are twenty weeks old.'

The Farm Bureau representatives then departed without giving Woodruff any indication as to the condition of the birds.

Woodruff began feeding the birds a special feed, but the mortality rate continued at the same pace. The condition did not improve and eventually Woodruff's poultry business was destroyed. Woodruff testified that he lost approximately $45,000.00 of gross income because the chickens never exceeded sixty percent of production capabilities. Woodruff also testified that ultimately approximately 2500 chickens died and probably 1600 more were condemned because of their condition.

In August 1966, Woodruff filed a Complaint against Farm Bureau for damages for breach of warranty, misrepresentation and fraud.

After certain discovery and the filing of affidavits relative to a Motion for Summary Judgment filed by Farm Bureau, the Special Judge made certain Findings of Fact on July 21, 1970, which are as follows:

'The court has carefully gone over the arguments presented by the parties and the conditional examination of the plaintiff. The examination of the plaintiff clearly indicates that he was in the poultry business for some twenty odd years.

The chickens in question were purchased July 24, 1964; at the time of the purchase the chickens were observed by the plaintiff and at the time of the...