Young & Cooper, Inc. v. Vestring

• Decision Date: 06 April 1974
• Docket Number: No. 47138,47138
• Parties: , 14 UCC Rep.Serv. 916 YOUNG & COOPER, INC., a corporation, Appellee, v. Robert B. VESTRING and James W. Vestring d/b/a Vestring Brothers, a partnership, Appellants.
• Court: Kansas Supreme Court

Page 281

521 P.2d 281

214 Kan. 311, 14 UCC Rep.Serv. 916

YOUNG & COOPER, INC., a corporation, Appellee, v. Robert B. VESTRING and James W. Vestring d/b/a Vestring

Brothers, a partnership, Appellants.

No. 47138.

Supreme Court of Kansas.

April 6, 1974.

Syllabus by the Court

1. Under the Uniform Commercial Code an express warranty by the seller is defined as any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the bargain. This creates an express warranty that the goods shall conform to the affirmation or promise. (K.S.A. 84-2-313(1)(a).)

2. Where facts or affirmations relied upon to prove an express warranty rest wholly in parol, it is the province of the jury to determine whether they amount to an express warranty.

3. It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. (K.S.A. 84-2-313(2).)

4. In the sale of goods representations of fact made in the course of negotiations which are capable of determination are warranties, but mere expressions of opinion, belief, judgment or estimate by a dealer in sales talk are not. Where opinions are coupled with representations of fact which relate to such matters and are susceptible of exact knowledge, they constitute more than a mere opinion and are properly regarded as representations of fact, and, to the extent they are representations of fact, they constitute warranties.

5. An implied warranty may be excluded or modified by the circumstances when the buyer before entering into the contract of sale has examined the goods or the sample or model as fully as he desired or has refused to examine the goods. Under these circumstances there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him. But it is only when the buyer unreasonably fails to examine the goods before he uses them, that the resulting injuries may be found to result from his own action rather than proximately from a breach of warranty. (K.S. 84-2-313(1)(b).)

6. Under the Uniform Commercial Code any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (K.S.A. 84-2-313(1)(b).)

7. Under the Uniform Commercial Code an express warranty by definition in K.S.A. 84-2-313(1)(a) makes it contractual and particular reliance upon the express warranty need not be shown.

8. Express warranties under the Uniform Commercial Code are not subject to exclusion or modification in the same manner as implied warranties.

9. Under the Uniform Commercial Code warranties whether express or implied shall be construed as consistent with each other an as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply:

(a) Exact or technical specifications displace an inconsistent sample or model or general language of description.

(b) A sample from an existing bulk displaces inconsistent general language of description.

(c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. (K.S.A. 84-2-317.)

10. In an action to recover the balance of the purchase price due on the sale of a herd of breeding cows, which were later determined to be infected with the disease of brucellosis, the trial court instructed the jury on implied warranties but refused to instruct the jury on the appellants' theory that express warranties were made in negotiations leading up to the contract of sale. On appeal the record is examined and it is held: Where the issue as to express warranties was raised in the pleadings and in the pre-trial order and there is evidence presented by the record from which the jury could have found that the herd of breeding cows in question were expressly warranted to be free, or reasonably free, of the disease of brucellosis, the trial court erred in its refusal to instruct the jury on express warranties and to submit such issue to the jury.

John P. Woolf, of Martin, Pringle, Schell & Fair, Wichita, argued the cause, and was on the brief for appellants.

Robert C. Foulston, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and John E. Foulston, Wichita, was with him on the brief for appellee.

SCHROEDER, Justice.

This is an action to recover the balance due on the sale of cattle under an oral sales contract. The action was defended on the theory that nothing was due the plaintiff because it failed to deliver a breeding herd of cattle in compliance with the oral sales contract, and the defendants counterclaimed for damages resulting from the plaintiff's breach of express and implied warranties made in the course of the transactions for the purchase of the cattle.

The case was tried to a jury which returned a verdict in favor of the plaintiff for the balance due on the oral sales contract. The trial court withdrew from the jury the issue as to whether express warranties were made and breached by the plaintiff. Appeal has been duly perfected by the defendants.

The primary issue on apeal is whether the trial court erred in withdrawing from the consideration of the jury the defendants' claim that the plaintiff made express warranties concerning the cattle sold to them, which were false.

The plaintiff in this action is Young & Cooper, Inc. (appellee). Don Young was acting on its behalf throughout the transaction in question. Robert B. Vestring and James W. Vestring d/b/a Vestring Brothers, a partnership, are defendants-appellants. Robert B. Vestring conducted negotiations on their behalf.

In March of 1969, while attending a cattlemen's convention Robert Vestring first learned Young & Cooper, Inc. had recently acquired a herd of cows. He was encouraged by Don Young to take a look at them when they arrived in Kansas. According to Don Young's testimony the appellee corporation purchased the herd, consisting of 450 Black Angus cows, five Hereford bulls and two Angus bulls, on January 21, 1969, from Leslie Nix who resided in Arkansas. Young had previously been acquainted with Nix and said he had purchased the prior year's calf crop from him. While Nix sold the herd to the appellee in late January, arrangements were made to leave them in Arkansas until early April when the appellee would have the cattle transported to Kansas. In order to comply with certain regulations controlling the transportation of livestock across the Kansas state line, Don Young contacted Dr. John G. Gish, a veterinarian practicing in El Dorado. Young requested Dr. Gish's assistance in obtaining the proper permits for the entrance of the cattle into Kansas with the least possible inconvenience as to handling the cattle and conducting tests. Dr. Gish contacted the state regulatory officials and ascertained that a stable, or one brand herd, i. e., an established herd that has been held under one ownership for a considerable period of time without constant additions, could be allowed entrance into the state, provided they came from a modified-certified brucellosis free area. Dr. Gish relayed this information to Nix's veterinarian in Arkansas.

Arrangements for moving the cattle were soon completed, and in the first week of April 1969, the cattle were trucked from Arkansas to Kansas by the appellee in its own trucks. The Arkansas health certificates accompanying the cattle indicated they were from a modified-certified brucellosis free area and bore the signature of a veterinarian, Dr. R. W. Phillips. The appellee corporation leased a tract of land, referred to as the Dunne pasture, located near Rosalia, Kansas, and placed the herd on it. The Dunne pasture is actually composed of three pastures, one located north of U.S. 54, one about the same size located on the south side of U.S. 54, and a much smaller pasture located just east of the south pasture.

Both Mr. Young and Mr. Cooper admit they told Robert Vestring that the cows were all brought directly to the Dunne pasture with no additions or deletions. However, the Vestring Brothers purchased 445 cows and fifteen bulls. Dr. Phillips in Arkansas signed documents indicating that a total of 465 cows and thirteen bulls were loaded in Arkansas. Thus, indicating a loss of twenty cows and an addition of two bulls. Mr. Young in his testimony was unable to account for these differences. Leslie Nix testified that he sold 450 Black Angus cows with calves and seven bulls, five Herefords and two Angus, to Young & Cooper. Mr. Young testified he purchased some bulls at the stockyards in Wichita and after having them tested for T.B., Bangs and also for sterility put them with the herd.

On the Sunday after the cattle arrived, Don Young inspected them. Later that afternoon Robert Vestring also inspected them and contacted Don Young indicating he would discuss the prospects of purchasing them with his partner, James W. Vestring.

The following Monday or Tuesday Robert Vestring went to Don Young's office to discuss buying the herd. The two mens' testimony regarding these negotiations varies somewhat. According to Don Young's testimony the men began the negotiations by discussing the price. Vestring thought Young was asking too much money for the cows. Young testified that during the negotiations he told Vestring the age of the cows was from three to five years; Young & Cooper, Inc., had purchased them as a breeding herd; that Nix had purchased the cows from some place in Texas and this was their second crop of calves; he described the herd as a good reputable herd; Nix had had the cows...