(concurring in part; dissenting in part).
FRAUD AND DECEIT
Concerning the fraud and deceit action, plaintiff has pleaded a cause of action and the affidavits and deposition of plaintiff demonstrate a genuine issue of material fact. Therefore, I concur as to that aspect of the majority opinion.
NEGLIGENCE IN SALES?
Regarding the alleged cause of action for negligence, I am totally perplexed as to the pleader’s basis for an action sounding in negligence. Koch bought the cattle in Oklahoma from divers persons at a sales ring. Laber then purchased the cattle from Koch. Is the pleader attempting to avoid pleading a cause of action in warranty or breach of contract? Now, indeed, if Koch was acting as an agent or broker for Laber, in dipping the cattle in Oklahoma and shipping them to South Dakota, perhaps the pleader has in mind a violation of some agency or brokerage agreement. The alleged improper dipping and shipping of the cattle very well could be an element of damage in fraud and deceit. However, Laber and Koch had a buyer-seller relationship or a principal-agent relationship and this alleged cause of action for negligence must hypothetically groove into some particular business relationship, per Laber’s advocacy.
Is Laber contending that Koch was negligent in selling cattle to him? If so, this is the birth of an innovative concept in the law of sales, I hazard. Under SDCL ch. 57A-2, the statutes pertaining to the law of sales permit no such recovery for negligence in purchasing goods from the seller. No perusal of the entire chapter will support such a theory. There are remedies such as breach of warranty, specific performance, fraud, rescission, replevy, and breach of contract.1 To plead negligence, however, such as we have here, is off the conceptual wall. Negligence on wrongs, in sales, is not in the statutes.
Plaintiff’s pleading on negligence is skeleton like. It realleges all the cause of *494action on fraud and deceit. Then, the pith of the cause of action pleaded is as follows:
That the Defendants were negligent in their care, transportation and selection of the livestock purchased by them to be sold and furnished to the Plaintiff, as aforesaid, which negligence was the proximate cause of some of the Plaintiffs cattle dying, others contracting “Bangs disease”, and others not being of proper weight at the time furnished to the Plaintiff.[2]
It strikes me that there are dual or overlapping damages sought, for these allegations pertain to damages provable in the fraud and deceit count. Please note, immediately above, that the pleader for the plaintiff extends a charge of negligence to Koch in not only negligently dipping and transporting the livestock but also negligently purchasing the livestock. Therefore, was Koch acting as an agent for Laber; or, did Koch buy the cattle outright and then Laber buy the cattle from Koch? In this business relationship between Laber and Koch, after the purchase of the cattle in Oklahoma by Koch, a bailment might well have arisen. Under a bailment, Koch would have owed a duty to safely care for the cattle entrusted unto him. No bailment violation has been pleaded.
FOR WHOM DO WE WRITE?
An appellate writer. For whom does he write? The academe? Law of the case? To follow precedent? For future legal generations? To pave the way for new legal precedent — new concepts? To teach? To give guidance to the trial court? To stimulate the Bar and Bench into a healthy, vibrant intellectual alliance thereby avoiding the humdrum of legal thought? As Justice Douglas wrote: “to prick the bubble of contemporary dogma”? To engender interest of law students? To decide the case — establishing the litigant’s rights? To reannounce a fundamental rule of law? To repudiate old doctrine, hoary with age, no longer sound because of social and technological change? Here, it is hoped that my musings would cause the negligence count to disappear; and that counsel, like thirsty deer which long for a babbling brook, would eagerly seek repose. Repose in the applicable law. Donning the role of the teacher that this case would crystalize into sound theory, it is suggested that a seller of diseased livestock may be held liable to the buyer for a loss of productivity which results in lost profits. Expenses attendant thereto are likewise recoverable. See Kaufman v. Van Santen, 696 F.2d 81 (8th Cir.1983); W & W Livestock Enterprises, Inc. v. Dennler, 179 N.W.2d 484 (Iowa 1970); Bemidji Sales Barn v. Chatfield, 312 Minn. 11, 250 N.W.2d 185 (1977). But the right groove must be found. Breach of warranty is addressed by these cases.
STATUTE OF LIMITATIONS
Plaintiff is putting on some fancy pleading moves. There is no implied warranty on the sale of cattle that they are free from disease. SDCL 57A-2-316.1. Plaintiff’s pleading gate is shut here. However, there can be an express warranty that they are disease free or would be; here, Koch represented the cattle to be free from disease. The statute of limitations on breach of warranty actions is four years. SDCL 57A-2-725. Plaintiff’s pleading gate is still shut. So now enter a fraud theory. The statute on fraud actions is six years. SDCL 15-2-13. Laber purchased the cattle from Koch in May 1978, and filed suit on May 3, 1984. Thus, it appears the fraud action was just under the wire and any warranty action was barred. No doubt this is why negligence is pleaded as a Second Cause of Action instead of breach of warranty.
CONCLUSION
As I am unable to conceptually attach myself to the negligence theory, and inasmuch as the trial judge granted the motion *495for summary judgment and entered a summary judgment against plaintiff on the negligence cause of action, I would sustain the trial court as there is no genuine issue as to any material fact thereon and the moving party, Koch, is entitled to a judgment as a matter of law on the negligence count. SDCL 15-6-56(c). The trial judge did not dismiss the action on the pleadings nor address it by piercing the theory behind the two counts alleged; notwithstanding, this Court can sustain him under the rationale of Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118 (S.D.1985); Staab v. Cameron, 351 N.W.2d 463 (S.D.1984); Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983); and Cook v. Rezek, 296 N.W.2d 731 (S.D.1980); namely, the trial court was right in granting summary judgment but for the wrong reason.
. SDCL 57A-2-711 provides for buyer's remedies in general. SDCL 57A-2-713, -714 provides for buyer’s damages for breach including accepted goods. See collected cases under Annotations.
. Under SDCL 57A-2-715, pertaining to buyer's incidental and consequential damages, all pertaining to breach, not negligence, inspection — receipt — transportation, are proper damage by way of expenses.