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Kaiser Agricultural Chemicals v. Rice

OPINION FILED DECEMBER 4, 1985.

KAISER AGRICULTURAL CHEMICALS, PLAINTIFF-COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE,

v.

DAVID RICE, JR., DEFENDANT-COUNTERPLAINTIFF-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

The plaintiff filed an action in the circuit court of Champaign County to recover the balance due, plus service charges, for herbicides provided for and applied to defendant's farmlands by the plaintiff. The defendant denied the allegations in the complaint and filed a counterclaim contending the plaintiff negligently mixed and applied the chemicals to defendant's land prior to planting, which resulted in damaged crops and reduced yield. The plaintiff's answer to the counterclaim denied all allegations with respect to negligence. The defendant was subsequently given leave to file an affirmative defense based upon breach of warranty. The plaintiff denied the allegations in the affirmative defense. In this posture, the case was presented to a jury for resolution.

The plaintiff's proof at trial showed that the balance due the plaintiff was $17,115.37. In addition, the plaintiff claimed finance charges of 21% per annum, as set forth in its billing statement forwarded to defendant. The testimony at trial showed that plaintiff, through two employees, Darvin Winnings and Dennis Butler, sold chemicals to defendant for his three fields. The defendant was to prepare the fields and advise the plaintiff when the fields were ready for spreading. Winnings and Butler were involved in the selling, mixing, delivery and spreading of the chemicals, and used plaintiff's equipment for those purposes. Defendant used his own equipment for incorporation of the chemicals into the soil.

When the herbicides were mixed, no chemical test was performed to determine if a proper mix had been achieved. Rather, plaintiff's employees conducted a visual examination and observed what was described as the proper milky-white color.

The herbicides were applied to defendant's three fields. Subsequently, the defendant had weed problems with one of those fields, a 155-acre tract. Charles Meeker, who lived on the property, stated that the soil was favorable and fairly smooth at the time the chemicals were applied to this tract. John Wickert, a foreman for DeKalb-Pfizer Genetics, for whom the defendant raised seek corn, testified that the field was not cloddy and had a good seed bed. Winnings, testifying for plaintiff, described the fields as "dry, rough and cloddy."

Winnings further testified that the vehicle used to apply the herbicides to the defendant's farm contained a dial to adjust the rate of flow of the herbicides being applied. He could not recall where the dial was set when applying the herbicides to the 155-acre tract. The vehicle had a spray boom with six nozzles; the nozzles were 10 feet apart on the boom.

John Jennings, sales representative for Shell Chemical, testified that he inspected the field in mid-June of 1982. He felt that the implement the defendant used for incorporation was not satisfactory, and was operated at a slower speed than recommended. Jennings thought that the implement needed to be equipped with shovels rather than points. He testified that the herbicides applied to the field need not be incorporated to function, but if incorporated, it must be done properly. Jennings' opinion was that a substantial cause of the poor weed control was application of the herbicides to a cloddy field. He testified that if a herbicide is attached to a large clod or just the soil surface, then it will remain on the surface. There must be adequate rainfall to enable the herbicide to enter the weeds and grass.

Robert Waelde, an agronomist and district manager for plaintiff, testified he believed that when defendant cultivated the soil it was a little wet, which may have resulted in clods.

Agronomist William Conterio inspected the field. He observed that where the weed control stopped on the field, it stopped in straight lines. He expressed his opinion that the herbicide was not properly applied. He further testified that the parent chemical of Bladex, one of the herbicides used, is an insoluble; as such, it must be ground into a fine powder and suspended in a liquid base. Conterio testified that if the suspension breaks, the chemical will sink. He gave his opinion that the suspension broke in this case. This, he suggested, would explain the bare spots showing a high concentration of herbicide, as well as the spots where there was little or no weed control, indicating a weak mixture of the herbicide. The existence of areas that remained clean in 1983 were an indication of application in excess of that needed in 1982. He testified that 1982 was an excellent year for farmers in Douglas County.

Marion Bateman, agricultural advisor for Douglas County, observed defendant's problem field on two occasions. He noted that the two or three rows next to the ditch were weedy, while the first 200 to 240 feet were extremely clean. He described the weed control in the remainder of the field as very sporadic. Batemen stated that 1982 was the best corn production year for farmers in Douglas County. He further testified that poor weed control had adversely affected production in the defendant's field.

The defendant testified that approximately one-half of the field was planted with Variety 60-60 seed corn, and the other half with an experimental variety called 29030. The Variety 60-60 yielded 53 bushels per acre, and the 29030 yielded 44 bushels per acre. Defendant testified that the yield should have been at least 80 bushels per acre for the female seed corn and 70 bushels per acre for the male corn. He estimated that he lost 4,824 bushels of female seed corn worth $18,900, and 1,200 bushels of male seed corn worth $2,790.

Darrell Stenger, who lives on a farm one mile west of Tuscola, testified that he planted 60-60 variety seed corn, and that he grew 84 to 86 bushels per acre. He went upon defendant's 155-acre tract in June of 1982 and observed the weeds. Stenger noticed that when there was a clean spot on the field, it was approximately 60 feet wide, or about the width of a spray boom.

At the close of all the evidence, the plaintiff moved to strike defendant's affirmative defense. The court granted the motion. The plaintiff also moved for a directed verdict on the complaint. The court granted the motion and directed a verdict for the plaintiff. The defendant moved to strike the claim of plaintiff for interest as stated in plaintiff's statement of account, and the court granted that motion. The defendant further moved to strike any claim by the plaintiff for interest. The trial court found that the principal amount of indebtedness was $17,115.37, and entered judgment in favor of the plaintiff and against the defendant in that amount. The court further found that of the total principal amount, the sum of $13,192.54 should not have been in dispute, and awarded statutory prejudgment interest of 5% per year on that amount. The court held that there was a legitimate dispute as to the remaining principal amount of $3,922.83, and refused to award prejudgment interest on that figure. The total judgment, plus interest, in favor of the plaintiff and against the defendant was set at $18,654.51.

The jury was instructed concerning the issues formed by the defendant's counterclaim and that plaintiff's answer to the counterclaim, and arguments were made by counsel on these issues. The jury returned a verdict finding for the defendant on the counterclaim, and assessed defendant's total damages at $21,690. The jury further found that the defendant was 10% contributorily negligent and reduced his recoverable damages to $19,521. Thus, taking into account the plaintiff's award under the complaint, the defendant's net recovery amounted to about $866.49. The plaintiff appeals contending that: (1) The trial court erred by not including interest at an annual percentage rate of 21% on the full principal amount; (2) the trial court erred in submitting the negligence claim to the jury, for it sought recovery for economic loss alone, and as such was barred by Moorman ...


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