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Filrep, S.a. v. Barry





APPEAL from the Circuit Court of Mercer County; the Hon. DAVID DeDONCKER, Judge, presiding.


This appeal is taken by the defendant, Francis Barry, from a judgment in the amount of $53,000 plus interest from May 1, 1975, at the rate of 8% per annum, being $13,768 and costs in the amount of $55.80, totaling $66,823,80, entered against him and in favor of the plaintiff, Filrep, S.A., a Swiss corporation, by the Circuit Court of Mercer County. The action was brought to recover the balance of monies allegedly due to the plaintiff upon a contract of sale of certain Simmental cattle to the defendant.

The following issues are presented in this appeal: whether it was improper for the trial judge to take judicial notice of the contents of a record in an earlier proceeding in the same court, which was presided over by another judge and in which the defendant in the instant case was the plaintiff; whether the judgment is against the manifest weight of the evidence; and whether interest was properly assessed against the defendant.

Defendant Barry commenced negotiations with the plaintiff in the early spring of 1974 for the purchase by the defendant of certain Simmental cattle from the plaintiff. The parties met in Ireland in June 1974, where the defendant examined specimen animals, both cows and bulls.

According to the defendant's testimony, an oral agreement was reached by the parties while in Ireland to the effect that the defendant would purchase 11 specified Fleckview cows for $20,000 apiece and five specified Simmental bulls from a particular lot for $15,000 apiece. He further testified that it was agreed that the females were to be shipped from Ireland to the United States with an unconditional guarantee of their fertility. In addition the parties agreed that the females were to leave Ireland all open, which meant that none of the females would have been bred before they left Ireland.

A down-payment was made by the defendant before leaving Ireland, but no written contract was signed by either party. Upon his return to the United States, the defendant received two written contracts from the plaintiff, one for the sale of the female cattle, the other for the bulls. One of these had been signed by the plaintiff, but neither was ever signed by the defendant or returned to the plaintiff.

• 1 Upon these facts alone, it is clear that the only contract between the parties, ratified by subsequent actions, consisted of the oral agreement reached in Ireland. The plaintiff's reliance on provisions in the written contracts which altered or modified the oral agreement are misplaced. Because those instruments were not properly executed, they are without legal effect to bind the parties.

Thirteen head of cattle were shipped to the defendant: 10 females rather than the 11 contracted for because one failed to pass certain importation tests; three bulls rather than the five contracted for, the plaintiff claiming that the two bulls were not sent because they failed the importation tests, the defendant agreeing that one bull failed the test but alleging that the remaining bull was not shipped because it was of superior quality. The reasons for the defendant's assertions are not clear from his testimony, but it appears he charges the plaintiff with knowledge that one of the two bulls not shipped was more valuable than all of the other bulls shipped and hence was worth a great deal more than the $15,000 contract price. The plaintiff denies that any one of the five bulls originally scheduled to be shipped was worth more than the others.

Based on the number of cattle shipped and the price agreed on by the parties in their oral contract, the plaintiff alleged in its complaint that the defendant owed $53,000, computed as follows:

10 females @ $20,000 each = $200,000 3 bulls @ $15,000 each = $ 45,000 Total contract price = $245,000 Paid by defendant = $172,000 ________ Due on contract = $ 73,000

Less credit for allegedly sterile cow (Etchen's Karina) = -$ 20,000 ________ Amount owed by defendant on contract = $ 53,000

At trial the defendant alleged that the female known as Etchen's Emerald was found to be with calf upon delivery. He further testified that he notified the plaintiff of this fact by mailgram. The plaintiff denies receiving this mailgram, pointing out that it was addressed to "Mr. Beaurenaux [sic] or Mr. Finet, Paris, (France)", an address insufficient to guarantee delivery. (Mr. Beaurenaut is the general manager of plaintiff Filrep S.A. and Mr. Finet is associated with him in the corporation.) According to the defendant's testimony, Etchen's Emerald was subsequently slaughtered for the going market value of approximately $250, since the early pregnancy had prevented her growth and thus diminished her utility as a breeding stock animal.

The defendant further testified that two of the cows received, Etchen's Karina and Etchen's Leona, were found to be sterile upon examination by Dr. Scott, a veterinarian. The defendant testified that he informed the plaintiff of this fact by telephone and acknowledges that he received a telegram from the plaintiff in reply, requesting that he send nonbreeder certificates for the two infertile cows. According to the defendant's testimony the necessity of supplying a nonbreeder certificate was not a part of the oral agreement reached between the parties, although the written contracts submitted to the defendant contained such a provision.

The defendant claimed that nonbreeder certificates were obtained and sent to the plaintiff, but he was unable to offer any evidence in support of this claim. The plaintiff denied receiving any nonbreeder certificates. Both parties agreed, however, that a credit of $20,000 was given to the defendant on the contract price for Etchen's Karina. The defendant further testified that ...

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