Surface v. Kelly

912 S.W.2d 646, 28 U.C.C. Rep. Serv. 2d (West) 162, 1995 Mo. App. LEXIS 1840, 1995 WL 653385
CourtMissouri Court of Appeals
DecidedNovember 8, 1995
DocketNo. 20121
StatusPublished
Cited by2 cases

This text of 912 S.W.2d 646 (Surface v. Kelly) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Surface v. Kelly, 912 S.W.2d 646, 28 U.C.C. Rep. Serv. 2d (West) 162, 1995 Mo. App. LEXIS 1840, 1995 WL 653385 (Mo. Ct. App. 1995).

Opinion

PARRISH, Judge.

Lester Surface (plaintiff) purchased nine ostriches from Ron Kelly, Larry Thompson and Margie Thompson (defendants). Defendants conducted business under the trade name Ozark Ostrich Farms. Plaintiff brought this action contending the ostriches were not fit for a particular purpose for which they were purchased; that defendants breached an implied warranty of fitness for a particular purpose imposed by § 400.2-315.1

Following a jury trial, judgment was entered for plaintiff. Defendants appeal. This court finds, as a matter of law, that there was no warranty of fitness for a particular purpose. The judgment is reversed and remanded with directions.

Plaintiff became interested in the ostrich business in 1993. He contacted defendants after seeing their advertisement for the sale of ostriches in Ratite Marketplace magazine. Plaintiff met with Larry Thompson and Margie Thompson and expressed an interest in acquiring ostriches for resale and “to try to hatch eggs.” He was interested in birds that were from two-and-a-half to four months old.

[648]*648Mr. and Mrs. Thompson took plaintiff to the Ozarks Ostrich Farms’ hatchery where he met Ron Kelly. Plaintiff was shown 35 or 40 birds. Birds in one of the runs at the hatchery were of the type and age in which he was interested. Plaintiff estimated that there were probably ten birds in that run. Plaintiff returned to the Thompson residence with Mr. and Mrs. Thompson. He told

Mr. Thompson he wanted nine birds, three trios consisting of one male and two females each. Mr. Thompson completed a preprint-ed, one-page “sales contract” which he signed on behalf of Ozark Ostrich Farms, and plaintiff signed. The sales contract identified what plaintiff agreed to buy as:

TYPE OSTRICH QUANTITY AGE COST TOTAL

A. Single Male 3 3-4 mo. 2,500.00 7,500.00

B. Single Female 6 3-4 mo. 5,500.00 33,000.00

C. Unrelated Pair (1 Male, 1 Female) LESS QUANTITY Discount -600.00

TOTAL COST 39,900.00

LESS DEPOSIT - 4,000.00

AMOUNT DUE ON RECEIPT OF OSTRICHES = 35,900.00

The contract was dated 8-25-93. It identified plaintiff as “Buyer” and Ozark Ostrich Farms as “Seller.” It stated that if delivery of the ostriches did not take place by 9-15-93, “the deposit of $4000.00 will be refunded to Buyer by Seller.”

The contract did not identify the ostriches plaintiff was buying. After plaintiff returned to his home, he called Mr. Thompson to get identification numbers of the ostriches he was buying for his bank.2

The ostriches of the type and age plaintiff wanted to purchase were not on grass when he first saw them. The floor of the run in which they were kept was covered with material Mr. Kelly described as “tarp material used to put over dump trucks to keep the gravel from coming out when they are going down the road.” The tarp material was on top of sand. The ostriches also had access to a barn with concrete floors.

Plaintiff was concerned that if the ostriches he was buying were not placed on grass before he moved them, they would not function well when he placed them on grass at his property. Mr. Kelly explained:

[Plaintiff] was concerned that if the birds hadn’t been on grass before when they got to his place they might over eat [sic] on grass because they have a tendency when they are moved and under stress to go off in a corner somewhere and eat something else besides their feed and that was what he was concerned about.

Plaintiff and his son returned to the ostrich farm about a week-and-a-half after he signed the contract to purchase the ostriches. The birds were still in the run where plaintiff first saw them. He was shown a grassy area which was being fenced and was told the ostriches would be placed there as soon as the fencing was completed. The ostriches were placed in the pen about two days later.

Plaintiff picked up the ostriches September 13, 1993. They were transported to plaintiffs property in a stock trailer and left in the trailer overnight.

The next day a veterinarian examined the birds. All nine were diagnosed as having ingested excessive amounts of rocks. One bird, ostrich No. 14, was in severe stress, dehydrated and weak. Ostrich No. 14 was taken to the University of Missouri Veterinary Clinic for emergency care. The bird died that evening. Defendants later provided plaintiff a replacement bird for the one that died.

[649]*649Another bird, ostrich No. 19, was operated on about two weeks later to remove rocks from its stomach and gizzard because it had not been eating. The veterinarian who first inspected the birds performed another inspection in May 1994. His opinion was that the birds’ sizes were stunted. He was unable to evaluate whether the birds’ breeding abilities were affected. That determination could not be made until they were older.

Defendants present five points on appeal. Four assert trial court error in not directing a verdict for defendants for various reasons. One contends the trial court erred with respect to an evidentiary ruling and one argues the trial court erred in not granting remitti-tur as to the amount of damages assessed by the jury. Point IV is dispositive of the appeal.

Point IV contends the trial court erred in not granting defendants’ motion for a directed verdict at the close of all the evidence because the goods sold, the ostriches, were livestock and “sellers of livestock are not liable for breaches of the implied warranty of fitness for a particular purpose unless such a warranty is in writing.”

Section 400.2-315 states:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods there is unless excluded or modified under section 400.2-816 an implied warranty that the goods shall be fit for such purpose.

Section 400.2-316(5) states:

A seller is not liable for damages resulting from the lack of merchantability or fitness for a particular purpose of livestock he sells if the contract for the sale of the livestock does not contain a written statement as to a warranty of merchantability or fitness for a particular purpose of livestock.

And, consistently, § 277.141 provides:

If a contract for the sale of livestock does not contain a written statement as to a warranty of merchantability or fitness for a particular purpose, the seller is not liable for damages resulting from the lack of merchantability or fitness for a particular purpose of the livestock sold under the terms of that contract.

It is questionable that plaintiffs statement to defendants that he wanted to buy four-month-old ostriches to raise for resale and to hatch eggs stated a particular purpose for which § 400.2-315 imposed an implied warranty of fitness. Arguably, this would be an ordinary use rather than a particular purpose for which the ostriches were being acquired.3 However, for the reasons that follow, this court need not, and does not, determine whether the representation plaintiff made to defendants constituted a statement of a particular purpose for which he was acquiring the ostriches.

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Bluebook (online)
912 S.W.2d 646, 28 U.C.C. Rep. Serv. 2d (West) 162, 1995 Mo. App. LEXIS 1840, 1995 WL 653385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/surface-v-kelly-moctapp-1995.