Ouwenga v. Nu-Way Ag, Inc.

604 N.E.2d 1085, 239 Ill. App. 3d 518, 178 Ill. Dec. 562, 20 U.C.C. Rep. Serv. 2d (West) 95, 1992 Ill. App. LEXIS 1966
CourtAppellate Court of Illinois
DecidedDecember 3, 1992
Docket3-92-0083
StatusPublished
Cited by14 cases

This text of 604 N.E.2d 1085 (Ouwenga v. Nu-Way Ag, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ouwenga v. Nu-Way Ag, Inc., 604 N.E.2d 1085, 239 Ill. App. 3d 518, 178 Ill. Dec. 562, 20 U.C.C. Rep. Serv. 2d (West) 95, 1992 Ill. App. LEXIS 1966 (Ill. Ct. App. 1992).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Following a bench trial in the circuit court of Kankakee County, plaintiffs Warren, Sharon and Richard Ouwenga, d/b/a Ouwenga Vegetable & Grain Farms, were awarded judgment and damages against defendant Nu-Way Ag, Inc., for breach of an implied warranty arising from the sale of certain agricultural chemicals. On appeal, defendant contends that the trial court erred in: (1) finding that defendant breached an implied warranty of merchantability; (2) awarding damages for a crop loss on 48 acres; (3) awarding damages for lost trucking revenue; (4) awarding damages for “expenses associated with the kill”; and (5) awarding prejudgment interest. We affirm in part and reverse in part.

Plaintiffs own and operate a vegetable and grain farm. Defendant is in the business of providing herbicides and other chemicals to area farmers. In June of 1988, plaintiffs contacted defendant and requested application of a mixture of nitrogen and Treflan herbicide to certain fields on plaintiffs’ farm. On June 30, 1988, employees of defendant prepared three loads of chemicals and spread them over 50 acres of the farm. During the first load, the chemicals were applied to a 22-acre field identified as field 10. Field 10 was planted with cabbage seeds on July 1, 1988. Seven to ten days later, the cabbage plants on that field sprouted and died. Plaintiffs suspected that the problem was caused by heat stress or a condition known as crusting. They consulted with defendant, who assured them that the chemicals had been properly applied as requested.

On July 23, 1988, plaintiffs replanted field 10 with cabbage. When plaintiffs replanted the cabbage, they were forced to plant cucumbers instead of cabbage on another field, field 12, in order to keep to their harvesting schedule. Plaintiffs could not plant both field 10 and field 12 with cabbage at the same time because they did not have the labor and equipment necessary for the simultaneous harvest of both fields. The cabbage planted on field 10 again sprouted and died.

After the second failure of field 10, plaintiffs began to suspect a chemical kill. In early August, plaintiffs had a horticulture expert run soil tests on samples from field 10. The tests revealed that the soil contained metribuzine, a triazine commonly used for weed control on soybean crops. Metribuzine is injurious to cabbage. Plaintiffs have never used a chemical containing metribuzine. At the time defendant applied the chemicals to plaintiffs’ field, defendant carried a product containing metribuzine. Dr. John Masiunas, an expert in vegetable herbicides, examined field 10 on August 14. He concluded that the cause of the cabbage kill was an improper application of a chemical, probably a triazine.

Plaintiffs filed a two-count complaint alleging defendant breached an implied warranty of fitness for a particular purpose and an implied warranty of merchantability under the Uniform Commercial Code (111. Rev. Stat. 1989, ch. 26, pars. 2 — 315, 2 — 314) (the Code). Plaintiffs alleged that the chemical mixture sprayed on field 10 by defendant on June 30 contained metribuzine and that this caused the crop failure. Following a two-day bench trial the court entered judgment in favor of plaintiffs. The court awarded damages in the amount of $137,957.52 for lost cabbage crops on 48 acres, $15,434.44 for lost trucking revenue, and $2,713.85 for expenses associated with the kill. The court also awarded prejudgment interest on all damages except the lost trucking revenue.

We first address defendant’s contention that the trial court erred in finding that defendant breached an implied warranty of merchantability. Section 2 — 314 of the Code provides in relevant part:

“(1) Unless excluded or modified (Section 2 — 316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ***
(2) Goods to be merchantable must be at least such as
(c) are fit for the ordinary purposes for which such goods are used.” (Ill. Rev. Stat. 1989, ch. 26, par. 2—314.)

Defendant argues that plaintiffs failed to establish that the chemicals used by defendant were not “fit for the ordinary purposes for which such goods are used.” In essence, defendant is claiming that plaintiffs failed to prove that defendant’s chemicals killed the cabbage. If the chemicals did kill the cabbage, they were certainly not fit for their ordinary purpose.

Whether an implied warranty has been breached is a question of fact, and the trial court’s determination on that issue will not be set aside unless it is against the manifest weight of the evidence. (Midland Supply Co. v. Ehret Plumbing & Heating Co. (1982), 108 Ill. App. 3d 1120, 440 N.E.2d 153.) It is well settled that the defective condition of a product can be shown by circumstantial evidence. Erzrumly v. Dominick’s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 365 N.E.2d 684.

We find that the evidence presented by plaintiffs in this case, although completely circumstantial, was sufficient to support the trial court’s finding that defendant’s chemicals killed the cabbage on field 10. Soil tests on samples from the affected field revealed the presence of metribuzine, a triazine herbicide injurious to cabbage. Dr. Masiunas, a vegetable herbicide expert, examined the field in August of 1988 to determine the cause of the kill. He was able to rule out the possibility of a disease or insect problem, a drifting over of herbicide applied on adjoining fields, or chemicals being washed in from adjoining fields. Dr. Masiunas concluded that the cause of the kill was an improper application of a triazine herbicide such as metribuzine. The only herbicide used by plaintiffs contained no metribuzine. At the time defendant applied chemicals to plaintiffs’ field on June 28, 1988, defendant had a product in stock called Preview, which contained metribuzine. Most importantly, defendant applied three loads of chemicals to plaintiffs’ field on June 28. Defendant’s records showed that the first load covered 22 acres, the same 22 acres killed. Based on these facts, the trial court could reasonably conclude that defendant applied metribuzine to the field on June 28, thereby breaching an implied warranty to provide merchantable goods, to wit, chemicals suitable for use on cabbage.

Defendant contends that the trial court ignored the testimony of defendant’s employees who stated that Preview could not be mistaken for Treflan, and that on June 28, 1988, only Treflan and nitrogen were applied to plaintiffs’ field. The trial court was in the best position to weigh the evidence and judge the credibility of the witnesses, and we will not disturb its findings on these issues. DeLong v. Cabinet Wholesalers, Inc. (1990), 196 Ill. App. 3d 974, 554 N.E.2d 574.

Defendant also contends that it did not breach an implied warranty of fitness for a particular purpose.

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604 N.E.2d 1085, 239 Ill. App. 3d 518, 178 Ill. Dec. 562, 20 U.C.C. Rep. Serv. 2d (West) 95, 1992 Ill. App. LEXIS 1966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ouwenga-v-nu-way-ag-inc-illappct-1992.