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06/28/88 Klingler Farms, Inc., v. Effingham Equity

June 28, 1988

KLINGLER FARMS, INC., PLAINTIFF-APPELLEE

v.

EFFINGHAM EQUITY, INC., DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF RICHLAND COUNTY; THE HON. JAMES

v.

HILL, JUDGE, PRESIDING. APPELLATE JUDGES:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 1172, 171 Ill. App. 3d 567, 121 Ill. Dec. 865 1988.IL.1011

JUSTICE KARNS delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Plaintiff, Klingler Farms, Inc. (Klingler Farms), brought an action in the circuit court of Richland County seeking damages from defendant, Effingham Equity, Inc. (Effingham Equity), for breach of contract. Klingler Farms alleged that Effingham Equity delivered the wrong herbicide which, when applied by Klingler Farms, destroyed 275 acres of soybeans. After a trial by jury, a verdict was rendered in favor of Klingler Farms in the amount of $32,500 and the trial court entered judgment thereon. Effingham Equity appeals.

In March of 1985, Klingler Farms ordered from Effingham Equity 437 1/2 gallons of Bicep, a corn herbicide, and 123 gallons of Dual, a soybean herbicide. This order was placed on a "back order sheet." On May 24 or 25, Klingler Farms contacted Effingham Equity to have a portion of the order delivered. Paul Klingler testified that he told Ron Hartke, an employee of Effingham Equity, to deliver 135 to 140 gallons of Dual. Hartke testified that Klingler instructed him to deliver 150 gallons of Bicep.

Hartke instructed another employee, Richard Hess, to deliver the bulk Bicep to Klingler Farms. The bulk Bicep was placed in an unlabeled storage tank. According to Paul Klingler's testimony, the herbicide is applied by mixing it with water in a mixing tank. From the mixer, the diluted herbicide is placed in a sprayer to be applied to the field. While the two herbicides are markedly dissimilar in their bulk form, no one involved in the application process noticed that it was Bicep, not Dual, that was being applied to the soybean field.

Once the soybeans were destroyed, the Klinglers decided to plant corn rather than allow the field to lie fallow. The record indicates that in February of 1985, Klingler Farms had entered into a corn conservation program, which was a price support and production adjustment program under the direction of the United States Department of Agriculture. Under this program, Klingler Farms signed a contract which permitted the Klinglers to plant a maximum of 676.6 acres of corn in return for certain payments and other benefits. The contract also sets forth damages and penalties to be imposed if the contract is violated. Planting 275 additional acres of corn put Klingler Farms well above the maximum permitted acreage. As a result, Klingler Farms had to pay liquidated damages of approximately $3,900, plus $1,700 in interest, plus repayment of the deficiency payment, which totaled $19,900. Additionally, Klingler Farms was ineligible for a second payment of $15,000 or for loan programs or any other benefits associated with the corn conservation program.

Klingler Farms filed suit on October 27, 1985. At a pretrial conference held on August 7, 1986, the trial court set the case for trial on November 24, 1986, and established a discovery cut-off date of October 15, 1986. On November 10, 1986, Effingham Equity filed a notice of expert witnesses. Klingler Farms filed a motion in limine to exclude Effingham Equity's experts and such motion was granted. The trial court also denied Effingham Equity's motion to amend its answer to include a defense of comparative negligence. Trial commenced on November 24, 1986. After a trial by jury, a verdict was rendered in Klingler Farm's favor in the amount of $32,500.

We note initially that Klingler Farms filed a petition requesting leave to cite additional authority and the petition was taken with the case. Having considered the petition and being fully advised of its premises, we find that the petition should be and hereby is granted.

On appeal, Effingham Equity argues that the trial court erred in granting Klingler Farms' motion in limine and excluding Effingham Equity's expert witnesses. Specifically, Effingham Equity maintains that the trial court misinterpreted Supreme Court Rule 220(b) (107 Ill. 2d R. 220(b)).

In relevant part, the rule provides:

"(1) Expert Witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:

(i) ascertain the identity of such witnesses, and

(ii) obtain from them the opinions upon which they may be ...


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