*1 “Q buy? many you How did ten, I I
“A She’d asked me for so told him that wanted said, many.’ I and he T don’t have that So ten what he had. bought
“Q Which was nine?
“A I I don’t know. know it was more than two and I
more than three and know it was more than seven, I but whether it was nine or ten or eight don’t know.
“Q you you Did sell all obtained to Naomi
Church?
“A Sure did.”
Thus, testimony defendant’s own reveals he knew he buying controlled substance from Dave Mathiason and that he was selling controlled substance to only Naomi Church. His error is that he thought the controlled substance was mescaline instead of LSD. Thus prejudicial instruction could not be to his defense.
I am authorized to state that joins Justice WINANS this special concurrence. FEEDS, INC., al.,
KENT Respondent v. STAHL et Appellants
(238 483) N.W.2d (File 15, 1976) No. 11465. Opinion filed January *3 Woods, Fuller, Simko, & and Shultz Smith John E. Sioux Falls, Freeman, Spilde, Richard and plaintiff respondent. Kabeiseman,
Brady, Light & Reade and C. Light, E. Yankton, for defendants and appellants.
WOLLMAN, Justice. brought Plaintiff an against action defendants allegedly delivery balance due a series *4 called 440. Kaufman had sold s feed plaintiff Bovin-O-Lac plaintiff 1958. He had known the defendants since the products since his 1968. He was they 1940’s and had been customers of since they feeding operation, familiar with their the number of cattle they using. and of feed were feeding, type quality were and the had visited had often to defendants’ farmstead and He traveled feeding pro- and to time about their with advised them from time dry supplement was who had sold defendants the feed gram. It he knowledge they in the fall of 1970. Defendants had no began using until Kaufman advantages liquid supplement the claimed the the matter with them. plaintiffs district discussed and manager 15, 1970, Kaufman, manager district plaintiffs October On met defendants at with plaintiff and another representative sup- the sale promoting liquid of the purpose their farm Kaufman told defendants that the Bovin-O-Lac had plement. dry supplement and health that the did marbling factors factors have and more economical to purchase per not that it also dry and had to pound gain equivalent supplement that it rates had been run. Kaufman testified that he recalled tests that a better that defendants were told that the Bovin-O-Lac would do they_were job compared supplement for them to the feed using.
Defendant Jacob Stahl recalled that Kaufman and plaintiffs district had manager told him that to tests according performed going help Bovin-O-Lac was to his cattle gain as dry fast or faster than the supplement, that it was to going cost dry no more than the supplement that he using, was then that it had certain dry health factors that even possibly supplement have, sold, did not yield that the cattle would better when a would marbling contained Bovin-O-Lac characteristic cattle, improve grade of the and that the Bovin-O-Lac would reduce the cost per pound compared dry to the supple- ment that defendants were then using.
Based the enthusiasm upon plaintiffs of Kaufman and district manager strength representations on the of their concerning Bovin-O-Lac defendants decided to switch from dry supplement feeding were plaintiffs liquid supple- They ment. decided liquid supplement 1 and 2 in lots dry feeding to continue supplement lot for the purposes of comparison. after Accordingly, supply dry supple- ment purchased from the competitor manufacturer was ex- hausted, defendants dry switched back to plaintiffs X L in Pro lot 3.
The first shipment of Bovin-O-Lac was delivered on or 5,1970, about December and was stored in special holding tank owned Kaufman Milling. The tank holding contained a mechanism agitating the liquid supplement, inasmuch as it *5 was necessary to agitate the supplement prior to it removing from the tank so that a homogenized mixture would be fed to the livestock.
28 Muscatine, Iowa, at plaintiff’s plant,
As manufactured acids, phosphates, 440 contained the fundamental Bovin-O-Lac vitamins, salt; additives, including trace urea and the other minerals, molasses had be added drugs regular and to at Iowa, City, being After for- plaintiffs plant. completely Sioux mulated, transported 440 was from the Sioux the Bovin-O-Lac Ci- by in a ty holding plain- to the on-farm tanks truck owned plant hoses, was loaded and unloaded but the holding tiff. The truck an agitation system. on the truck did not contain compartments 440 delivery Each of Bovin-O-Lac accompanied tag shipment to include a certain of guaranteed amount minerals, calcium, and A protein, including vitamins vitamin zinc. minerals,
In to the above described vitamins and addition diethylstilbestrol defendants also ordered additive (stilbestrol) be added to each 440. to of Bovin-O-Lac The supplement was formulated to insure a balanced diet for cattle on feed; plaintiffs one of witnesses testified presence of calcium, A necessary vitamin and the trace mineral zinc in quan- gainability tities of cattle on feed and improved and minerals present vitamins were not in balanced quantities of be gain the rate would tend to reduced. Defendant Jacob Stahl testified that he the stilbestrol expected to account for a fifteen to seventeen reduction in the cost percent gain. plain- One of tiffs reputation witnesses testified that stilbestrol has the significantly the rate of increasing gain cattle and that in the absence of this additive cattle would not gain rapidly. Another plaintiffs witnesses testified that the use of stilbestrol should result in an increase of from fifteen to seventeen in feed percent i.e., efficiency, ability of cattle to convert feed into meat. Toward the middle February having fed the liquid approximately days, 50 to defendants became with the cattle in appearance dissatisfied lots because did not appear show the finish or the cattle in lot 3 were showing. Defendants made Kaufman, dissatisfaction known Mr. who requested that defen- dants continue to use the liquid supplement. Because repeated *6 defendants, by complaints Mr. Kaufman called in other of plain- tiff s employees to attempt to assist him in determining what was 2, wrong Kaufman, with the cattle. On or about April Mr. plaintiffs district manager another of plaintiffs employees feedlots, went to defendants’ they where observed that the cattle 3lot showed more finish than those in and 2. lots One of plain- tiff s employees took samples silage, the corn and the liquid that defendants were feeding and advised defen- dants that samples would be taken to plaintiffs Muscatine plant analysis. Mr. Kaufman had earlier asked a local veterinarian to check the cattle for disease. Mr. Kaufman himself any could not observe signs of disease and never received a any report of disease from the veterinarian. Mr. Kaufman ad- vised defendants to switch back to plaintiffs A D Super & Primer dry supplement, 4,1971. did on or April about 10,1971,
On or April about an inspector for the South Dakota Department of Agriculture came to defendants’ feedlots at defen- dants’ request and took two samples of the Bovin-O-Lac 440 from the holding tank after one of the defendants agitated had the li- quid supplement within the tank using the electrically powered agitating mechanism. Both samples were delivered to Vermillion, the state laboratory Dakota, chemical South analysis. One of these samples analyzed for total crude pro- tein, vitamin A diethylstilbestrol; the other sample was analyzed for total crude protein, diethylstilbestrol, A, vitamin calcium, phosphorous, salt and zinc. The results of the analysis on the two samples when compared with guaranteed analysis tags furnished plaintiff with of each shipment of the liquid supplement were as follows:
Found in guaranteed Stated on Substance Samples analysis tag 1) Total crude (Sample 46.10% 44.0% 2) protein (Sample 44.99% 44.0% Diethylstil- None NoneNone
bestrol 29,400 34,000
Vitamin A USP USP U/lb. U/lb. less than Not 0.1% None Calcium than not more 1.0% than Not less 1.3% 2.15% Phosphorous *7 Not less than 3.0% Salt 4.10%
not more than 4.0% less than Not 0.10% Zinc 0.01% (1000 ppm) January of on shipment liquid Between the first (the 13,1971 been to that date so emptied prior tank had holding modified), and the last could be agitation the mechanism 4,1971, completely tank was never delivery holding March the on delivery was liquid supplement As each successive of the empty. made, in remaining the liquid supplement was mixed with the it delivery last of Bovin-O-Lac on Defendants received the tank. 4, 1971, the last note on receipt March and executed 5, 1971. April 2 1 and was in lots 385 cattle fed out average gain
The 29.43 cents. gain of average per pound cost 448 pounds; pounds; in 3 was 509 fed out lot the cattle average gain The was 17.81 cents. average per pound cost in the amount judgment complaint prayed Plaintiffs defendants, $6,158.88 including delivered to sold and for feed above, a granted the trial court 440. As indicated Bovin-O-Lac claim, certain credits to less on this directed verdict defendants. erred in inter trial court contend that Defendants 583, v. 86 S.D. Jungers, Purina Co. decision in Ralston our
preting
600,
for plaintiff
be directed
a verdict to
N.W.2d
as requiring
199
We
supplement.
for the feed
owing
amount
on its claim for the
Failure of con
well
is
taken.
contention
that defendants’
conclude
be set forth affir
must
defenses that
is
of those
sideration
one
15-6-8(c).
affir
As an
SDCL
matively
pleading.
responsive
a
defense,
a claim for
distinct
from
is separate
mative
it
As was stated
ain counterclaim.
set forth
damages properly
183,
Want or lack of consideration and failure of consideration are root of or separate goes distinct defenses. One to the contract; reason for the is based events oc alleged upon other curring after the contract has been executed. Am. alleged Jur.2d, Contracts, 397; Indeed, 129. C.J.S. Contracts § § *8 by Purina case we recognized Ralston Co. this distinction first holding that defendants had not sustained burden of prov their lack v. ing by total of consideration and then United States citing Schaeffer, Cir., 907, 319 partial F.2d for the that a proposition failure of ground consideration is for abatement of damages. light
When viewed
favorable to their position,
most
regarding
defendants’ evidence
lack
alleged
conformity
liquid supplement
they
between the
and that
had ordered and
they
that
in fact
received was sufficient to warrant submit
ting their defense of partial failure of consideration to the jury,
although the trial court cannot be
ruling
faulted for
it did in
view of the
fact that
the Ralston Purina
case we
Co.
did not
elaborate
the distinction between the defenses of lack of con
and
sideration
failure of consideration.*
jury’s
Defendants contend that the
against
verdict
them on
contrary
greater weight
the counterclaim was
to the
of evidence
*
by
imply
every
holding
We do not mean to
disparity
our
herein that
trivial or fancied
agreed upon
between
which is
as the consideration for a contract
allegedly
support
and that which is
received will
the affirmative defense of
duty
every
failure of consideration. It will still be the
determine whether the evidence in
of the trial court in
case to
claimed
defense is sufficient
support
Bank,
present
jury.
an issue of fact for the
v.
Cf. Jerke Delmont State
54 S.D.
446,
and was result of passion prejudice. or counterclaim, respect With to the was instructed in part that:
“You are instructed that this has Court directed a in favor of the Plaintiff for the amount claimed sold, delivered, to be due for feed supplements and used Defendants, by the less certain credits. This removes case, your you from consideration this part yourselves are no with longer concern this phase of the case. remains, then, consideration, your
“There counter-claim of the Defendants. Defendants counter-claim claim the feed supplement, Bovin-o- 440, Defendants, lac sold the Plaintiff to did not pro- vide the guaranteed by nutritional balance the Plaintiff. Plaintiff, Defendants through contend that its agents, assured using them that Bovin-o-lac a liquid feed dry instead of supplement, had been that the cost of a using, pound would be yield reduced and would and grade that the cattle bet- ter. Defendants allege that the Bovin-o-lac sold to deficient; them was defective and fed cattle 440 actually gained dry Bovin-o-lac slower than those on feed and higher gain; at a cost per pound that all of said warranty by acts constituted a breach of *9 resulting Plaintiff in a loss to Defendants in the sum of ” * * * $10,150.20. Instruction No. 9 jury informed the that: by
“The Defendants proving, have the burden of evidence, preponderance of the that there were in fact warranties made with respect to the contents of the feed Bovin-O-lac 440 with the pro- together mise greater less cost war- per pound; at that the broken, ranty was in breach said fact that the warranty was the cause loss and poximate Defendants. by claimed the damages Defen- you “If find all of the evidence that from stated, just as then proof met their burden of dants have in favor of Defendants you return a verdict the should If, by on as has the evidence. any proven loss been hand, failed you Defendants have other find that the the any of issues con- on the proof to meet their burden of them, then proof which the rested on cerning burden in favor of Plaintiff.” you should return a verdict the it had by instructing jury that argue Defendants that claimed to amount plaintiff a verdict favor of directed trial in effect told the be due for the feed court supplement, were jury right that that defendants mistakenly jury with the result that the concluded wrong, were not on their counterclaim. prevail defendants entitled to However, 17 in we note the trial court’s Instruction No. jury formed that: instructions,
“If, you in accordance with the Court’s Defendants, Brothers, find that Stahl are en- should Plaintiff, Inc., Feeds, titled to a verdict Kent against duty your damages then it is award Defendants such to reasonably will them for the result- compensate loss ordinary course of events from the breach ing warranty, warranty by you if is such breach of found In proximate damage be the cause of such or loss. arriv- you damage, at the amount or must not con- ing of loss any way due the sider the amount Plaintiff for the must con- supplements sold to the Defendants. You yourselves only damages, any, cern with the sustained warranty Defendants their breach of claim. by the under may adjustments parties Whatever between the be by your will necessitated be made the Court your verdict after has been received.” be ex- Although defendants contend that the could not intentionally recovery by awarding pected plaintiffs reduce being after the trial damages counterclaim informed *10 34
court that was plaintiff fully entitled to recover pro- on the notes, missory they also argue that their affirmative defense of partial failure of consideration had been submitted to the jury it would have been possible jury for the determine that worthless, little, Bovin-O-Lac 440 very or worth and still find that defendants were not entitled to recover on their counterclaim. We just think that it is as realistic to expect that jury explicit would follow the court’s instructions and decide the any merits of defendants’ counterclaim without reference to the granted fact that had been a directed verdict on its claim for the balance due on the as it would expect be to jury find for defendants on their affirmative defense par- tial failure of consideration them against on their damages warranty. counterclaim for for breach of From the evidence presented, jury very could well have concluded that defendants’ attempted comparison of rates between the cattle in lots and and those in 3lot was in factors, valid because of a number e.g., differences in type of shelter available for each pen, types different of feeding facilities for each pen, different mud conditions pen, for each different sources silage for the cattle in the different pens, the fact that the weights of the cattle were unknown when the liquid supple ended, ment feeding program was started and when it was different genetic backgrounds of the cattle in the several pens, and the fact that the liquid supplement was fed for less than one- is, half the time of feeding period, the total days for 99 out of days. a total of feeding
Accordingly, portion of the judgment entered on the affirmed; against defendants on their counterclaim is portion judgment upon based the directed verdict favor of plaintiff against defendants on plaintiffs complaint for the balance due the delivery receipt notes is reversed.
DUNN, J., DOYLE, JJ., C. WINANS and concur. COLER, J., concurs in part and dissents in part.
COLER, Justice (concurring part, dissenting in part). *11 verdict. I and the directed jury affirm both the would they answer and counterclaim As I view the defendants’ consideration, supplement the feed claiming allege failure of total than total They claimed less was of value to Defendants.” “no consideration, however, relief for the in their for prayer failure of value, $23,699.40 if any, the of a sum for “sum less reasonable of * * * supplement.” the jury damages as a of part submitted to the The trial court jury Instruction #9 warranty defendants’ requested breach of the #16 as follows: reading Instruction “16 warranty of is damages “The of breach measure ordinary directly naturally resulting, the loss events, In the warranty. breach of course of from the loss, such quality, warranty case breach of of of showing circumstances proximate absence special amount, is between damages greater difference the time the value at supplement it buyers and the it would have had had to the value However, cir- where warranty. special answered the of a showing proximate damages proven cumstances are amount, naturally may all result greater damages warranty, party accrue in favor of the from breach of warranty if are certain injured such breach of directly are and determinate nature or amount also warranty as their attributable breach (emphasis supplied) cause.” instruction, claim for
By salvaged the defendants this in denying if the court erred for lack of even trial damages quality failure consideration claim. partial instruction, coupled I with foregoing under the submit that issue of majority opinion, #17 forth in Instruction set already has been submitted to value of the feed and resolved might prefer, we jury, heading under another than against the defendants. It became the law of the case and defen- dants are they helped bound the law for the purposes establish 15-6-51(b). of this case. SDCL
FARMERS COOPERATIVE ELEVATOR COMPANY REVILLO, JOHNSON, v. Appellant Respondent
OF
(237 671) N.W.2d (File 15, 1976) No. 11546. Opinion January filed on of notes receipt defendants had in signed consideration for sup- of feed plement. alleged Defendants in their answer that the notes were consideration; not collectible because of of failure defendants also counterclaimed for damages resulting from an alleged breach of warranty. The trial court directed a verdict in plaintiff favor of evidence, its at complaint the close of defendants’ and the trial proceeded with defendants’ only counterclaim as the remaining issue. The returned a in plaintiff favor of and against defendants on the counterclaim. We in part reverse and affirm in part. Defendants engaged general have been in a farm partner- 1961. ship since Their are partnership approx- farmsteads located Freeman, imately three miles west and one mile south of South of consists farming operation Defendants’ diversified Dakota. oats, alfalfa, corn, feed to hay which defendants of and cultivation 1970, in separate feedlots In utilized three defendants livestock. will be to herein which referred feeding operation, cattle 1, 3, respectively. and lots in cattle involved this began purchasing Defendants in of part barns in the area the latter from auction lawsuit various 1970, of early November purchases August completed basic mixed or types, The were of two year. purchased cattle cattle, beef and Holsteins. crossbred feedlots, they introduced into the several As the cattle were supple- hay protein a ration of and commercial were started on Primer, A D drya supplement, Defendants first used & ment. L, dry X 32% Pro both supplement, then switched to another These plaintiff. supplements were two manufactured had opportunity fed in all three lots until defendants were dry at a supplement comparable content purchase quantity from another manufacturer. price lower Kaufman, an employee In the fall Morris feed business under the operated who a livestock Freeman Service, attempted to interest defen- Milling name of Kaufman manufactured purchasing liquid dants