Farmers Grain Cooperative v. Fredrickson

321 P.2d 926, 7 Utah 2d 180, 1958 Utah LEXIS 126
CourtUtah Supreme Court
DecidedFebruary 21, 1958
DocketNo. 8701
StatusPublished
Cited by2 cases

This text of 321 P.2d 926 (Farmers Grain Cooperative v. Fredrickson) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Grain Cooperative v. Fredrickson, 321 P.2d 926, 7 Utah 2d 180, 1958 Utah LEXIS 126 (Utah 1958).

Opinion

WORTHEN, Justice.

Appeal from a judgment entered on the jury’s verdict awarding defendant damages for breach of warranty and negligence with respect to nutritional deficiencies in turkey feed furnished defendant by plaintiff.

•Defendant in 1953 contracted with plaintiff to raise 5,000 turkeys on its feed. He executed a note and mortgage on the birds to secure the advances of feed. The mortgage required defendant to purchase from plaintiff all feed required by the mortgagor for the feeding of said turkeys.

Defendant received the turkeys from H. J. Bonie Company of Ogden. The birds were brooded at Trenton, Utah by Jay Hodges, and were delivered in two batches, 3,920 ons April 11, and 1,120 on April 14.

A short time after delivery, defendant began incurring abnormal death losses in the flock. The birds at that time were being fed on Farmers Grain Crumbles. One Grant Leonard, the plaintiff’s salesman, who made the deal with defendant iwas [182]*182contacted as was Amie Bonie, the turkey-salesman. Leonard suggested the introduction of terramycin into the drinking water. On April 22, 1953, six of the poults were sent to Utah State University for examination, diagnosis and recommendation. Dr. Miner, head of the Department of Veterinary Science at the University, was of the opinion that the poults were suffering from a Vitamin B deficiency, and recommended the use of milk products. Notwithstanding the recommendation of Dr. Miner, Leonard instructed defendant to keep the birds on terramycin. They were kept on the drug for another eight days before they were "put on a milk diet. The birds continued dying but a short time after they were put on a milk diet the death rate subsided. Seven hundred and twelve birds were lost in the brooder house. At about five weeks of age the birds were moved to colony houses from the brooder. No unusual losses were sustained in the colony houses.

From the time the birds were moved onto the range until processing, defendant lost another 395'birds. No analysis was made of any of the birds after-they went onto the range. No analysis was ever made.at any time of any of the feed.

The project did not pay out. Plaintiff brought an action to foreclose on the note and mortgage. Defendant counterclaimed alleging breach of Warranty and negligence with respect to nutritional deficiencies in the feed. Defendant claimed damages as-follows: (1) $3,600 for the poults that died, (2) $4,102.92 for loss of weight on the birds that did not die, (3) $5,309.76 for extra feed required to bring the birds to maturity.

The case was tried to a jury; a special verdict with interrogatories was submitted upon which it returned in defendant’s favor-on his counterclaim as follows:

Item one for loss of poults $3,500.00
Item two for loss of weight of other birds 3,779.00
Item three expended for extra feed 5,039.76

The jury found for plaintiff on its note and mortgage a balance for feed in the sum of $5,309.33.

The first item for loss of poults was. reduced from $3,500 to $1,698, and judgment was entered by the court in favor of defendant for $10,516.76 on his counterclaim and in favor of plaintiff on its note and mortgage for $5,309.33.

Plaintiff assigns error as follows:

I. Insufficiency of the evidence to justify the inference that the feed was deficient and that such deficiency proximately’caused defendant’s damage.

II. That the court erred in permitting defendant to inquire about insurance carried by plaintiff against defendant’s losses.

We are unable to agree with appellant as to his first assignment of error. Rather we are of the opinion that the evi[183]*183dence was sufficient to justify the inference that the feed was deficient and that such deficiency proximately caused defendant’s damage.

Testimony was given by all other turkey growers who received poults from the same two hatches involved as well as from the supplier of the poults. All of the other turkey growers testified that their poults were in good condition upon delivery; all testified as to the conditions under which their poults were brooded; their mortalities, none of which were exorbitant and were much lower than defendant’s; all testified as to their weights at processing, which were considered within the range of normal weights. None of the other growers used plaintiff’s feed.

Amie Bonie, the poult salesman, testified that he was an expert in selling and servicing including brooding and ranging. He testified that all of the turkeys including defendant’s were in good condition when delivered; that brooding conditions for defendant’s poults were ideal. He corroborated the testimony of the other growers who bought from the same two hatches that defendant’s, poults came from. He testified that the brooding conditions used by all the purchasers were conducive to bring about the same results as the brooder conditions of. defendant, that .defendant’s poults were the only ..ones - fed . on feeds furnished by plaintiff, and that the only turkeys from the hatches in qúestioñ fronr-which normal, or better than ■ normal, results-were not obtained'were the poults fed on plaintiff’s feed.

There is absent any evidence that the conditions under which defendant’s poults were brooded, colonized and ranged were not ideal. The testimony of plaintiff showed that its representatives were on defendant’s premises frequently and had every opportunity to observe the conditions surrounding the care of the turkeys, yet no objections were made so far as the record discloses. Plaintiff had more than a passing interest in this flock. It was security for the feed furnished defendant. It is inconceivable that, if plaintiff’s representatives felt that its security was being jeopardized, suggestions looking to safeguarding the flock would not have been made.

Mr. Bonie testified that he had been with H. J. Bonie Poultry Company for 20 years; that the company hatched its eggs, sold the poults and purchased the finished turkeys back in the fall. He testified: “It’s my duty to sell the poults, deliver and to service the poults, trouble shooting and whatever is required of me.” He checks the flocks sold by the company about once a month to see how they were getting along. He had done servicing for 7,000,000 or 8,000,000 turkeys.

He testified that he found no trouble, with any of the flocks except defendant’s. He stated “We ran into a problem there that-1'couldn’t analyze, * * * I simply [184]*184told them to take them to the college and have them examine them and have them recommend something. * * * ”

“I thought it was a nutritional condition. They had cankerous mouths and dry feathers, which was an indication they weren’t getting the nutrition they should have. í|í

Dr. Miner testified as follows:

“Assuming that the poults, all poults came from one hatch and that they were raised under the same conditions, transported and raised under the conditions up to the age of twelve weeks, and only one group of the hatch showed nutritional deficiency, it would certainly point toward a lack of nutrients in the feed.”

Defendant testified as to the additional amounts of feed required to ready the birds for market. In addition to the testimony of Amie Bonie and defendant, Mr.

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Bluebook (online)
321 P.2d 926, 7 Utah 2d 180, 1958 Utah LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-grain-cooperative-v-fredrickson-utah-1958.