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Amoco Oil Co. v. Toppert

OPINION FILED JANUARY 18, 1978.

AMOCO OIL COMPANY, PLAINTIFF-APPELLEE,

v.

BURDETTE TOPPERT ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Rock Island County; the Hon. JOHN DONALD O'SHEA, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This action was commenced in three separate counts by plaintiff, Amoco Oil Company, against the defendants, Burdette Toppert, Charles Toppert and Larry Toppert, to recover the purchase price of fertilizer sold to defendants and spread on their farms. A jury returned a verdict in favor of plaintiff against each defendant and after a remittitur was ordered by the trial judge, the circuit court of Rock Island County entered judgment for plaintiff. It is from this modified judgment that defendants appeal.

The primary question on this appeal is whether failure to comply with certain provisions of section 5(c) of the Illinois Fertilizer Act of 1961 (Ill. Rev. Stat. 1973, ch. 5, par. 55.5(c)) renders the contract between the parties unenforcible.

The fertilizer delivered to the defendants was a custom mix whose composition was first agreed upon by the parties at a meeting early in the spring of 1974. The deliveries in question occurred throughout most of the 1974 farming season. It was understood that each of the defendants could order fertilizer for the other, but the owner of the farm where the fertilizer was spread would be responsible for the bill.

The farmland owned by the defendants encompasses 20 separate farms located in two counties with a total acreage of over 2,000 acres. The fertilizer in question is a nitrogen-based liquid fertilizer especially prepared to defendants' specifications and hence known as a custom-mixed fertilizer.

Plaintiff prepared statements at the time each truck was loaded with the liquid fertilizer which showed the guaranteed chemical analysis and the weight of the fertilizer. However, these statements generally were not supplied to the defendants at the time each load was delivered, which is contrary to the provisions of section 5(c). It appears part of the difficulty in supplying the statements resulted from the widespread nature of defendants farming operations and the absence of someone to receive the statements. At the end of the 1974 season, plaintiffs separated all the statements by accounts and then offered them to defendants. Defendant Larry Toppert testified that any of the defendants could have picked the statements up from the office of the plaintiff's manager and that the manager wasn't hiding the statements from defendants.

The three counts of the complaint sought damages totaling approximately $55,000 together with interest. During trial 108 different statements were admitted into evidence, along with summaries of the statements. The jury entered three verdicts totaling $20,112.38 and interest thereon at a rate of 8 percent. Following a post-trial motion by the defendants, the trial judge ordered a remittitur on the interest, finding the proper rate of interest to be only 5 percent. No question is raised on appeal by plaintiff as to the propriety of the remittitur order.

As a preliminary matter, we must determine whether the issues concerning section 5(c) were preserved for review. Plaintiff contends that because defendants failed to include this issue in their post-trial motion, they are now precluded from raising the issue on appeal. Without setting forth the respective errors claimed in defendants' post-trial motion, we find the motion sufficiently specifies this issue to entitle plaintiff to review.

Section 5(c) of the Illinois Fertilizer Act of 1961 provides:

"(c) If distributed in bulk as custom mixed fertilizer, a written or printed statement shall accompany delivery of each load and be supplied to the purchaser at time of delivery and must carry information as follows:

1. Weight of each commercial fertilizer used in the custom mixing.

2. The guaranteed analysis of each commercial fertilizer used in the custom mixing.

3. Total weight of fertilizer delivered in each load.

4. Name and address of the person selling the fertilizer." Ill. Rev. Stat. ...


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