Albin Elevator Co. v. Pavlica

RAPER, Justice,

dissenting, in which THOMAS, Justice, joins.

I concur in that part of the majority opinion which affirms the district court in its finding that appellant breached an express warranty.

I dissent from that part of the court’s opinion which denies appellant his lost profits and expenses. . While the evidence of what appellee’s 140 acres of irrigated ground would have produced is not overwhelming, it is as good as possible and sufficient to support the trial judge’s finding that it would have potentially produced 40 bushels of wheat per acre, having a value of $4.00 per bushel for a total of $22,400.00.

I

The evidence was that appellee was an experienced farmer, having owned and operated his farm for some seven years. In addition, he did custom farming for others *194in the area. On his own place the wheat was planted on ground irrigated from well water by a center-pivot sprinkling system. The evidence was that he followed good farmer-like practices with respect to this particular crop. There was no hail in the area that year. His expert witness in plant breeding and crop management from the University of Wyoming testified that the wheat “stands [in Pavlica’s field] were good, I couldn’t see any germination problems.” Appellee testified that it was a “real fine stand” of wheat, even though lacking stalks and heads.

Lawrence Anderson, a neighboring farmer testified that, “the bushel yield in 1980 was a farmer’s average of 60 bushel an acre.” Appellee’s expert witness testified that on a test circle (irrigated by sprinkler) in the Albin vicinity where the University of Wyoming worked with the farmers, different varieties of wheat varied as much as “25, 30 bushel difference between the top varieties and the bottom ones.” He also testified that the area where the wheat is grown will affect production, one area may have an 80-bushel potential while another will have a potential of only 65 bushels per acre.

The appellant produced no evidence whatsoever to rebut the testimony as to crop yields introduced into evidence by ap-pellee.

The objective and office of damages is to compensate for loss. While damages may not be calculable with absolute certainty, they should be susceptible of ascertainment with a reasonable degree of certainty; and, if there is evidence from which a reasonable estimate of money damages may be made, that is sufficient. The primary objective is to determine the amount of loss, applying whatever rule is best suited to that purpose. Douglas Reservoirs Water Users Ass’n v. Cross, Wyo., 569 P.2d 1280 (1977); Wheatland Irrigation District v. McGuire, Wyo., 562 P.2d 287 (1977).

The supreme court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party that conflicts with it, and give the successful party every favorable inference which may reasonably and fairly be drawn from it. Johnson v. Aetna Casualty and Surety Co. of Hartford, Conn., Wyo., 630 P.2d 514 (1981). The cases are so numerous on this point that it is fruitless to cite them. See, West’s Wyoming Digest, Appeal and Error, Key Numbers 930(1) and 931(1). However, in the case before us, there was no conflicting evidence.

We should not substitute our view of the facts for that of the trial judge. The supreme court should not substitute its conclusions for the findings made by the trial judge. Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959). The evidence is capable of the finding that the “farmer’s average” for the area in which both Anderson and appel-lee farm is about the same. What could be more certain than the unrefuted evidence that the average production in that area was 60 bushels per acre? The “test circle” in the same area indicates a low range of 25 to 30 bushels less than the top range of 65 to 80 bushels of spring wheat per acre, depending upon variety. In estimating damages, evidence of the value of natural crops of like kind in the same neighborhood is competent. Smith v. Hicks, infra. The 40 bushels of wheat per acre found by the trial court is within the range of the evidence. All that is required for a damages award is that there be a reasonable approximation by the trial court if within the limits of the evidence furnished. Wyoming Wool Marketing Ass’n v. Woodruff, Wyo., 372 P.2d 174, 3 A.L.R.3d 802 (1962). As indicated in that case, damages are sometimes not capable of ascertainment with mathematical exactitude. There are probably no two plots of earth in the world that have identical productive capability. Many other elements enter into farming: weather, soil, seed, availability of water, farming practices, etc., etc. The evidence points to the inevitable conclusion that an average crop would have been produced by appellee. The trial judge struck a medium between the highest of 65 to 80 bushels and 30 bushels less than that, finding appellee’s *195land would have produced 40 bushels per acre. Appellee had a good stand, but he did not ask for a particular variety of spring wheat when purchased. The evidence clearly shows appellee lost a crop; that is certain. There was certainty in the fact that he raised an irrigated crop, not dry-land. There is certainty a crop will mature when irrigated. Smith v. Hicks, 14 N.M. 560, 98 P. 138 (1908); United Verde Copper Co. v. Ralston, 46 F.2d 1, 2 (9th Cir. 1931). There was no hail that year, so that uncertainty was not present.

With respect to the question of certainty, Corbin on Contracts § 1022, p. 142, states:

“It is not possible to state the precise degree of approach to certainty required for the recovery of profits as damages for breach of contract. If the mind of the court is certain that profits would have been made if there had been no breach by the defendant, there will be a greater degree of liberality in allowing the jury to bring in a verdict for the plaintiff, even though the amount of profits prevented is scarcely subject to proof at all. In this respect, at least, doubts will generally be resolved in favor of the party who has certainly been injured and against the party committing the breach. The trial court has a large amount of discretion in determining whether to submit the question of profits to the jury; and when it is so submitted, the jury will also have a large amount of discretion in determining the amount of its verdict. * * * If

The same would apply to the court as the fact finder.

It makes no material difference whether it was by fire or as a result of appellant’s breach of warranty, the crop was lost; ap-pellee is entitled to be compensated. See Corbin on Contracts § 1026, p. 165. He sets out another approach which could perhaps have been used in this case in arriving at damages for the loss of a crop arising from defective seed. He summarizes White v. Miller, 71 N.Y. 118 (1877):

“In a leading case, A bought seed of B warranted by the latter to be Bristol cabbage seed. The seed was in fact worthless mixed seed; but unaware of this, A set out more than a hundred thousand plants raised from the seed. The crop produced was good only for cattle. It seemed reasonably certain to the court that, had the seed been as warranted, A would have produced a much more valuable crop. A certainly had a right to damages measured by the full value of the Bristol cabbage seed that had been promised him. This could reasonably be regarded as a gain that would have resulted to him from full performance of the contract; but the court saw fit to look forward to more remote gains than that, and gave judgment to A for the value of a crop of Bristol cabbage that would ordinarily have been produced under the existing conditions less the value of the crop that was actually produced. The degree of uncertainty as to the crop that would have been produced was not so great as to prevent the court from giving judgment for damages measured thereby.”

See also, Randall v. Raper, El. Bl. & El. 84, 120 Eng.Rep. 438 (1858), where Raper had sold barley seed to the plaintiff, but it turned out to be of an inferior quality. The English court held that the damage was the difference between the value of the crop of barley that should have been raised and the value of the inferior crop that was actually raised.

I have a deep concern for what appears to be a mistake in computing damages by the trial judge. His findings are inconsistent with the judgment he rendered. He found the expenses of raising and harvesting a crop of wheat to be $11,429.001 and that if a crop of wheat had been produced, it would have brought $22,400.00, less $600.00 since the crop of leaves resulting *196from winter wheat seed planted in the spring actually was sold for forage.2 He deducted the expenses from the resulting $21,800.00, and gave judgment for $10, 371.00, the difference between $21,800.00 and $11,429.00.

While the foregoing computation is the correct method of reaching lost profits, it does not grant to appellee his total damages. By way of damages, he lost his actual expenses plus his profit; not only his actual expenses of $9,023.00 but also his profit of $10,371.00 for a total of $19,394.00! He should have had judgment for $19, 394.00. In other words, the court only gave him lost profits of $1,348.00 — the difference between $9,023.00 and $10,371.00. The production would have been 5,600 bushels (40 X 140 = 5,600). Under the judgment the award is $1,348 5,600 = 24$ per bushel net profit! His net profit should have been $10,371.00 -T- 5,600 resulting in $1.85 per bushel. The lost profits are only one element of appellee’s damages; his actual expenses are another. The trial court took out appellee’s expenses twice, once by not reimbursing them and again by not giving him the value of the crop he would have had in the market.

McCormick on Damages (1935), pp. 487-488, explains this process of ascertaining damages arising from a lost crop:

“ * * * Accordingly, the decisions usually sanction the practice of admitting proof, where the growing crop is destroyed, of the probable yield and value of the crop, when finally harvested and marketed at maturity, and of the cost of the further care and cultivation, harvesting, and marketing, as evidence of the actual realizable value of the growing crop when destroyed. It is a short step from this to say directly, as many cases do, that the measure of damages is what the crop when harvested would finally have brought, less the prospective cost of cultivation, harvesting, and marketing. While the distinction between the two formulas seems of slight intrinsic importance, the instructions must be framed according to the form locally preferred. The more direct doctrine, allowing as damages the prospective net proceeds, is perhaps less likely to invite difficulties over the question of whether there is a market value or disputes over the kind of evidence which will be admitted to show value. * * * ” (Emphasis added and footnotes omitted.)

This court has held that the measure of damages for breach of contract is that which would put the plaintiff in the same position as he would have been in had the contract been performed, less proper deductions; in other words, it is that which will compensate him for the loss which performance would have prevented or breach of it has entailed. Reynolds v. Tice, Wyo., 595 P.2d 1318 (1979); Zitterkopf v. Roussalis, Wyo., 546 P.2d 436 (1976). A person should receive compensation commensurate with his loss. Rocky Mountain Packing Co. v. Branney, Wyo., 393 P.2d 131 (1964). These rulings are consistent with § 34-21-294, W.S.1977 (§ 2-715, U.C.C.). See, R. E. B., Inc. v. Ralston Purina Co., 525 F.2d 749 (10th Cir. 1975), which would allow expenses and lost profits under § 34-21-294, W.S.1977 (§ 2-715, U.C.C.).

I have some difficulty understanding why appellee did not cross-appeal. He apparently is satisfied with a $1,348.00 profit. Anyway, if that is all he wants, I would have affirmed the district court in all respects.

II

However that may be, I just cannot understand the majority sending the appellee away empty handed and am appalled by such harshness. It is in complete discord with basic justice. It finds the trial judge was correct in finding there was a breach of warranty and then deprives appellee of damages proven and found.

Rule 52(a), W.R.C.P.:

*197“(a) General and special findings by court. Upon the trial of questions of fact by the court, or with an advisory jury, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties requests it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing its special findings of fact separately from its conclusions of law; provided, that without such request the court may make such special findings of fact and conclusions of law as it deems proper and if the same are preserved in the record either by stenographic report or by the court’s written memorandum, the same may be considered on appeal. Requests for findings are not necessary for purposes of review. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.”

This is similar to Rule 52(a), F.R.C.P.3

The appellee as plaintiff in his complaint prayed for the cost of raising the crop and his lost profits. The court in its judgment made findings of fact:

“ * * * [T]he court finds generally for the Plaintiff and against the Defendant on the complaint of the Plaintiff and further makes the following findings: That the Defendant did not deliver to the Plaintiff spring wheat as ordered by the Plaintiff and as represented on the delivery ticket issued by the Defendant’s agent to the Plaintiff, but delivered winter wheat; that the winter wheat delivered to Plaintiff by Defendant did not produce a crop of wheat; that as a result Plaintiff lost the profit he would have otherwise made from said crop in the sum of $10,371.00, computed as follows: A potential gross return of Forty (40) bushels per acre on One Hundred Forty (140) acres, each bushel having a dollar value of Four Dollars ($4.00) for a total of Twenty-Two Thousand Four Hundred Dollars ($22,400.00) from which should be subtracted the following expenses incurred by Plaintiff in connection with the crop: Eight Hundred Sixty-Six Dollars ($866.00) for seed grain, Nine Thousand Twenty-Three Dollars ($9,023.00) for electric power to operate the sprinkler system and water well, land preparation, planting, fertilizing and post emergent herbicide spraying, and One Thousand Five Hundred Forty Dollars ($1,540.00) for harvesting; All of said figures are taken from Plaintiff’s Exhibit 1, using the higher figure therein given for the operations performed by the Plaintiff which figures the court finds to be the reasonable cost of said operations; The further sum of Six Hundred Dollars ($600.00) should also be deducted as the sum received by Plaintiff for use of the vegetation actually produced as cattle grazing; that the counterclaim of Defendant should be dismissed.
“IT IS THEREFORE ORDERED, adjudged and decreed that the Plaintiff have and recover from the Defendant the sum of Ten Thousand Three Hundred Seventy-One and 00/100 Dollars ($10, 371.00) together with his costs incurred herein, taxed at $25.00.”

*198Rule 1.04, W.R.A.P. provides that “[a] judgment rendered or final order made by a district court may be reversed in whole or in part, vacated or modified by the Supreme Court for errors appearing on the record.” (Emphasis added.) It is well settled that the judgment of a district court may be affirmed on any legal ground appearing in the record. Wyoming Public Service Commission v. Hopkins, Wyo., 602 P.2d 374 (1979).

A trial court’s findings of fact form the basis of its conclusions, and a judgment must therefore find a basis in the trial court’s findings. State Highway Commission v. Garton and Garton, Inc., Wyo., 418 P.2d 15 (1966). As said in United States v. Forness, 125 F.2d 928 (2nd Cir. 1942), cert. denied 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764, cited with approval by the Federal Advisory Committee on the Civil Rules and 5A Moores Federal Practice, § 52.06[1]:

“ * * * The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably ‘right’ legal rule applied to the ‘wrong’ facts yields a decision which is as faulty as one which results from the application of the ‘wrong’ legal rule to the ‘right’ facts. The latter type of error, indeed, can be corrected on appeal. * * * ” 125 F.2d at 942.

The trial judge made findings of fact which are supported by the evidence and consistent with the appellee’s complaint wherein he prayed for his expenses of raising a crop:

“ * * * $9,200.00 as the cost paid by Plaintiff of land preparation, irrigation and spraying.”

as well as:

“3. For the sum of $24,400.00 as lost profit.”

The evidence and the trial judge’s findings fully support a recovery of expenses and lost profits.

I would have affirmed.

. Itemized as follows:

$ 866.00 Seed (Bill not paid)
1,540.00 Harvesting (Not paid but proven as a normal expense for acreage, involved) ■
9,023.00 Other Expenses (Power, land preparation, planting, fertilizing actually expended)
$11,429.00

. Appellee entered into an agreement with a neighbor to pasture his cattle on the aborted wheat leaves for that amount.

. Rule 52(a), F.R.C.P.:

“(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).”