Ralston Purina Co. v. Iiams

Messmore, J. This is an action on a contract, to recover balance due thereon in the amount of $1,253.65. The cause was tried to a jury, resulting in a verdict for the plaintiff in the sum of $359.89. From judgment entered on the verdict and the overruling of the motion for a new trial, plaintiff appeals. Plaintiff’s amended petition alleged, in substance, that on or about July 29, 1936, defendant made, executed and delivered to plaintiff his written contract for the purchase of merchandise, which he received. The amended answer and counterclaim acknowledged the purchase from plaintiff of 42 tons of “Hog Fatena Meal,” to be sold to defendant by open finance; affirmatively alleged that the contract was ob — 589 — tained by fraud and misrepresentation in that the agents of the plaintiff represented to defendant falsely and fraudulently that hog Fatena was a tested food, guaranteed and warranted by the plaintiff to feed out on the basis of 300 pounds of meal to 100 pounds of pork, and that no other feed would be required; that plaintiff’s agents demonstrated through advertising and radio announcement, wherein the warranty was made by plaintiff directly to defendant, who relied upon the false representations and believed them to be true; that, so relying and believing, defendant was thereby induced to execute and deliver the contract; that plaintiff knew the representations to be false and made the same with reckless disregard of whether or not they were true, when it should have been known by plaintiff that the representations were false and made with the purpose and intent that defendant should act and rely thereon; acknowledged receipt on August 26, 1936, of 150 sacks of hog Fatena to be fed to 140 hogs owned by defendant, which were weighed previous to the feeding of the hog Fatena and averaged 50 pounds per head; that the first shipment did not last to exceed 20 days, and defendant thereafter received other feed from the plaintiff; that the product did not show the gain on the hogs, as represented, and in the month of October, 1936, plaintiff’s agent called on defendant for the purpose of making a satisfactory adjustment, and plaintiff failed to deliver the meal, pursuant to. the adjustment, and. the amount so delivered was insufficient for the purpose, making it necessary for the. defendant to feed, in addition, 200 bushels of barley, valued at $160; two hundred dollars’ worth of buttermilk, and 100 bushels of seed corn at $3 a bushel, and, in addition, skim milk of the value of $10, totaling $720 in expenditures directly caused, by the fraudulent act of the plaintiff, and which sum included loss by death of six hogs of the value of $50; prayed that, the proper deductions be allowed and, in addition, damages in the amount of $41.07. The plaintiff’s reply was, in effect, a general denial, and a specific denial of any warranty, express or implied; alleged that in December, 1936, plaintiff — 590 — delivered to defendant, without charge, approximately 11 tons of its product in complete settlement and in accord and satisfaction of any claim the defendant had; prayed for dismissal of defendant’s counterclaim and that plaintiff recover in accordance with its amended petition. The contract provided for the purchase of 42 tons of hog 'Fatena meal in the amount of $2,234.40, to feed 140 hogs, to be marketed through the O. K. Commission Company, Omaha, Nebraska, on or about April 1, 1937. In addition there was signed a statement by the defendant, listing 140 hogs of the value of $700, average weight 40 pounds, condition good, to be marketed April 1, 1937. Defendant’s counterclaim is based on fraud. Fraud is never presumed but must be proved by a preponderance of the evidence by the person alleging it. Ralston Purina Co. v. Cox, 141 Neb. 432, 3 N. W. (2d) 748; Foley v. Holtry, 43 Neb. 133, 61 N. W. 120; Saffer v. Saffer, 133 Neb. 528, 274 N. W. 479. This rule of law is well settled in this state, and other citation of authority on this point is unnecessary. The first assignment of error is the insufficiency of the evidence to prove defendant’s counterclaim, in accordance with the above stated rule. A review of the evidence discloses the following: The defendant testified that some time in July, 1936, he first heard of the Ralston Purina feed over the radio from various broadcasting stations, one of which he designated. He did not remember any part of the broadcast, but recalled a statement made therein, that the feed was supposed to produce 100 pounds of pork by the use of 300 pounds of feed. Some time later he talked to a local dealer, who informed him that the feed was supposed to be guaranteed “and it just took three hundred pounds of that to make one hundred pounds of pork.” The defendant purchased the product on that basis. He fed his hogs in a self-feeder and after it was gone new feed was given to the hogs, which they would not eat. It developed that this feed was defective in that it did not contain the proper amount of molasses. During this time buttermilk was also fed. The de — 591 — fendant lost six head of hogs. He complained, and subsequently a representative of plaintiff called on him, taking samples of the meal, sending them in for examination, and agreeing to adjust the matter by furnishing an additional amount. According to the figures, 180 sacks would be the necessary amount. The defendant had some of the product on hand, and 220 sacks more, each weighing 100 pounds, were delivered to defendant free of charge. With reference to the adjustment there is a dispute. Eleven tons of additional feed were furnished by the plaintiff. The defendant claimed that he was entitled to 19 additional tons. The local merchant testified that the settlement required 13 or 14 tons. The defendant marketed some hogs at different times, and from the sale thereof paid the plaintiff on the contract the sum of $980.75. The hogs so marketed had been fed on plaintiff’s product exclusively for three and a half months, with the exception of buttermilk and skim milk. Eighty head sold on the market brought $1,339.59. The defendant on cross-examination testified that he had agreed with the representative of the plaintiff and was satisfied with the figures as to the amount of feed to be furnished. No complaint was made by the defendant until after all of the hogs were sold. The local merchant testified that he sold a great quantity of plaintiff’s product, receiving a commission therefor, and was in business for himself, not employed by the plaintiff; that he sold the feed on the basis that 300 pounds of it would produce 100 pounds of pork; that he had been so informed by a representative of the plaintiff and by letter that the product offered great possibilities when sold on such a basis, and he stated that such representation was a guaranty as to what it would do. He had also heard broadcasts to such effect in an advertising campaign put on by plaintiff, and that plaintiff’s feed would effect a saving over the feeding of corn. The local representative of plaintiff testified that the representation made as to the quality of the product would be taken from the records on the plaintiff’s experimental farm — 592 — where hogs had been fed, and showing approximately the amount it took under certain favorable feeding conditions to accomplish certain results; that no positive guaranty as to what the product would do was made. The witness testified to the conversations had with the defendant about the feed, the taking of the samples, that the meal was defective, lacked molasses, and that he made an adjustment to the complete satisfaction of the defendant by furnishing •him the additional amount, finally, of 220 sacks, and that no complaint was made by defendant until some considerable time after the hogs were sold; that the feeding and results thereof depended upon the condition of the hogs from date of birth, the manner in which the feeding was done, whether in self-feeders or by hand, to obtain uniform gains, or whether some of the product was wasted, and conditions generally. The .foregoing constitutes the material evidence from which the defendant contends he has proved fraud and misrepresentation. Defendant accepted the feed, fed it, marketed 80 head of hogs, — the first shipment averaging- 227 pounds each, the last 195 pounds each, — for which he received the amounts as set forth in this opinion. For the remaining 60 head of hogs he was furnished 11 tons of meal; he had some of the feed on hand; he was satisfied with the settlement, except that he claimed to be entitled to eight tons more than furnished. The number of tons to which he was entitled was disputed; he made no complaint until after he had marketed all of his hogs. The evidence clearly demonstrates that no fraud was practiced by the plaintiff in procuring the contract. It is clear, under the facts and circumstances in the instant case, that there was no statement or alleged representation made upon which the defendant had a right to act. At most, the statement attributed to the plaintiff was merely dealer’s talk, puffing and praising its goods, which is permissible. The following authority applies: “In order for an express warranty to exist, there must be something positive and unequivocal concerning the thing — 593 — sold, which the vendee relies upon, and which is understood by the parties, as an absolute assertion concerning the thing sold, and not the mere expression of an opinion; representations which merely express the vendor’s opinion, belief, judgment, or estimate do not constitute a warranty. Dealer’s talk is permissible; and puffing, or praise of the goods by the seller, is no warranty, such representations falling within the maxim simplex commendatio non obligate’ 55 C. J. 688. The record discloses that the plaintiff made a motion for a directed verdict' for the amount prayed in its amended petition, and when this motion was overruled plaintiff moved for judgment in the amount prayed in the petition, less eight tons of feed. This motion was overruled. The evidence respecting the settlement for additional feed which the plaintiff and defendant elected to make is controverted as to the amount of additional feed that the plaintiff should furnish the defendant. On this issue the cause is remanded for further proceed- ' ings to determine the credits to which the defendant is entitled, if any. Reversed.