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Show MONDAY, AUGUST 5, 1974 PAGE ELEVEN INTERMOUNTAIN COMMERCIAL RECORD' In The Supreme Court Robert H. Lamb and Marcla No. 13064 N. Lamb, his wife, Plaintiffs and Respondents, FILED July 29. 1974 Thomas Bangart and Shirley Allah E. Mecham, Clerk Bangart, his wife. Defendants and Appellants. of The State of Utah Fuyard 40 for $2, 500. The Lambs further indicated their willingness to purchase the breeding interest in Fuyard 1st, if the parties could reach a reasonable agreement. Dr. Lamb returned to Salt Lake City and Mrs. Lamb remained In Caldwell and then accompanied Bangarts to their ranch In Roberts, Montana, Mrs. Lamb was shown Fuyard 1st in Hs pen and observed him arise and turn around. When she queried about his walking outside of his pen, she was Informed that a bull doesn't need to walk very much; she never had an opportunity to observe his walking. Mrs. Lamb was further shown two pens containing twenty heifers who were represented to be the offspring of Fuyard 1st, and Mr. Bangart Informed her that he would select the ten females Lambs were purchasing from this group. Mrs. Lamb testified that the heifers she was shown were uniform in age, height, and size, and resembled each other. Mrs. Lamb accompanied Mr. Bangart in a truck and they drove around his ranch and he indicated cattle, which he represented to be the dams of the heifers In the pens. Mr. Bangart never informed Mrs. Lamb that some of the heifers she had observed came from anywhere other than 2. Ewell and Son, Inc. v. Salt Lake City Corporation, 27 Utah 2d 188, 192, 493 P. 2d ' CALLISTER. Chief Justice; ' Plaintiffs initiated this action alleging breach of warranty and fraud on the part of defendants In the sale of certain livestock. After a prolonged trial before a jury, In response to a set of special interrogatories, the jury awarded plaintiffs $60,500 compensatory damages; $10, 000 punitive damage; and $20, 000 attorney's fees. The trial court rendered judgment thereon, stating that the jury by Its verdict had determined that the damages sustained by plaintiffs were caused and Induced by the fraud of the defendants. Defendants appeal citing nine points which they urge constitute prejudicial error on the part of the trial court. The parties executed a written livestock sale agreement on May 27, Paragraph 1 contains a description of the livestock: (a) A interest in a Charolals Bull, known as Fuyard. 1st, located at the T. L. Bangart Ranch, Roberts, Montana, (b) Ten purebred Charolals heifers (daughters of the above described bull), which heifers had already been delivered to buyers. 1 (c) One Charolals Bull described as T.L.B. Fuyard 40; this animal Is not included In this action. Under paragraph 2 of the livestock agreement, the purchase price of the quarter interest In Fuyard 1st was designated $50, 000, and the price of the ten heifers was $25, 000. Under the terms of payment, the plaintiffs were not obligated to pay the balance of the purchase price of $30, 000 on Fuyard 1st until January 5, 1969; this sum was never paid because of subsequent events. Under paragraph 6, the sellers warranted that all of the animals were breeders. The livestock agreement further recited that the parties would execute contemporaneously with the sale agreement a Joint Ownership Agreement with Keating Ranch, Inc. , which also owned an Interest In Fuyard 1 st. This second agreement reiterated the provision of paragraph 4 of the sale agreement conferring on plaintiffs the right to collect all the semen from the bull until they had 1500 ampules. The Joint Ownership Agreement provided that possession of the bull should be retained by Bangarts at their ranch or such other place as they might determine. Each party was responsible for paying the expense Involved In collecting semen from the bull, but Bangarts were to pay the costs of transporting the bull from their ranch to and from Denver (the location of the International Beef Breeders, the facility where the semen was collected). 1968. one-four- th In plaintiffs' complaint, they alleged that at the time they entered into the livestock agreement defendants misrepresented and fraudulently concealed certain material facts which. If known to plaintiffs, would have caused them to refrain from entering into the transaction. Specifically, defendants concealed from the plaintiffs the fact that Fuyard lot was not In good physical condition and was not. In fact, a breeder as represented. Furthermore, the ten purebred Charolals heifers sold to plaintiffs pursuant to the agreement were represented to be daughters of Fuyard 1st, when, In fact, they were not, and such fact was known to defendants at the time of execution of the agreement and delivery of the heifers. Plaintiffs claimed that they had been damaged as a direct result of the false and fraudulent misrepresentations In the sum of $100,000. Plaintiffs pleaded for an award of $50,000 punitive damages on the ground that the 1283 (1972). his ranch. Later In the day, when Mr. Bangart drove Mrs. Lamb to the airhe port, requested a down payment of $?.0, 000 on the Interest In Fuyard She was reluctant since they did not have a written agreement, and 1st. she had never conferred with Mr, Keating concerning the proposed arrangeInterest in Fuyard 1st. Mrs. Lamb ment, and he owned the other one-ha- lf and then husband Issued the check, which upon Mr. Bangart' a telephoned her Insistence she wrote that It was In payment for Fuyard 1st. The ten heifers and Fuyard 40 arrived at the Lambs' ranch in Alabama on April 1, 1968, and Mrs. Lamb personally checked them on arrival including the tattoo marks In their ears. Later In the same month Mrs. Lamb expressed her disappointment to Mr. Bangart when he visited the Lambs' ranch that. the heifers were not uniform and were not in as good shape as the ones she had previously observed. He reassured her that they were merely suffering the effects of a long trip and would grow out of it. At this time the Lambs refused any further payments until the entire trans, action was reduced to a written agreement. In April, Mr. Bangart sent Fuyard 1st to the International Beef Breeders, hereinafter referred to as I. B.B. , for the purpose of collecting his semen. The bull arrived on April 17, 1968 at the I. B.B. , and the company's veterinarian, Dr. Leo M. Cropsey, testified that he observed the animal about one hour after Its arrival nd that It had a lameness In the right hind leg, which in his opinion was caused by nerve paralysis. Dr. Cropsey testified that he telephoned Mr. Bangart, who does not recall the conversation. The telephone bill of I. B.B. verifies that two calls were made to the Bangart ranch on that date. The Lambs testified that they had no knowledge of the bull's presence at I. B. B. , until after the written agreement was executed on May 27, 1968, at which time Mr. Bangart Informed them of the location of the bull. The Lambs received a statement from I. B. B. In early June, billing them for the bull's boarding since April 17, 1968. Mr. Bangart vigorously disputed Lambs' claim. t I When the Lambs received the billing from L B,B. and noted that only a small amount of semen had been collected from the bull in the past six weeks, they went to Denver to observe him. The bull had considerable difficulty In walking. Dr. Cropsey testified that during the time the bull remained at I. B. B, there was a gradual paralysis which developed In the hind legs. On October 24, ' 1968, the Bangarts removed the bull from I. B. B. and returned it to their ranch In Montana. On December 10, 1968, the Bangarts had the bull shot. During the time the bull was at I. B. B. , the only viable semen that was retained for was 100 ampules collected on May 6, 1968. U. C. A. breeding purposes This description creates an express warranty under 1Q5V mr flmnriri 196;. false and fraudulent misrepresentations of defendants were made wilfully and maliciously. Plaintiffs further pleaded for reasonable attorney's fees as provided in the livestock sale agreement. 1. ' j-- 70A-2-313(I)(- b), Prior to the bull's departure from I. B. B". , Dr. Lamb requested that a blood sample be drawn and sent to Ohio State University for blood typing. The Lambs also arranged to have blood samples from the ten heifers sent to ' the same Institution.' On December 6, 1968, the Ohio State Laboratory reported that seven of the ten heifers could not be daughters of Fuyard 1st. Dr. Lamb sent a letter on December 10, 1968 to the Bangarts stating that Important representations and promises that had been made were not accurate and had not been fulfilled and therefore he requested rescission. On December 14, four days after the bull had been shot, Mr. Bangart telephoned Dr. Lamb and Informed him of the bull's death and stated the letter was too late. The jury In the special verdict found that none of the ten heifers delivered by defendants to plaintiffs was a daughter of Fuyard 1st and that $33,000 would reasonably compensate plaintiffs because the heifers were not Fuyard 's daughters. The jury found that Fuyard 1st was not a "breeder" as that term was generally understood in the purebred cattle industry at the time of the written contract in May 1968. The jury found that the sum of $27, 500 would compensate plaintiffs for the damages suffered and proximately resulting from the fact that the bull was not a "breeder. " The jury found that the defendants or either one of them had made misrepresentations to plaintiffs (a) knowing the same to be false, or (b) that they or either one had Insufficient knowledge upon which to base such representations. The jury further found that the defendants or either one wilfully and maliciously made misrepresentations that constituted fraud to plaintiffs. The Bangarts proffered two factual defenses concerning the paternity of the heifers. On the one hand, the dams of the heifers were leased and, re' mained on the ranches of the lessors and they had accepted the word of th,e lnsemlnators as to the paternity of the heifers. On the other hand, Bangarts went to the Lambs' ranch In June, 1972 and examined the cattle and claimed ' :" that the cattle they Inspected were not the same as those delivered In April,1 1968 and that someone had switched cows. Mr. Bangart in his testimony obIn reviewing the instant record, this court is obliged to survey the evidence and reasonable inferences that could be drawn therefrom In the light favor- served that the cows he examined In 1972 did not appear to be purebred Char2 olals and exhibited certain Brahma characteristics. The Lambs presented able to the verdict and judgment. evidence to prove the animals were In fact the same ones delivered by Bangartc One of the expert witnesses, Dr. Bell, examined the records of Fuyard' Plaintiff, Dr. Lamb Is an orthopedic surgeon; both he and his wife had and semen collection from Cache Valley Breeder's Association and I. B.B. health some ranching experience in their youth. They purchased a ranch in Eclectic, He testified that It was obvious by November 30, 1967 that the bull's breeding Alabama and determined to raise Charolals cattle. The Lambs' first contact with abilities were degenerating., He based this opinion on the quality, quantity of the Mr. Bangart was in February, 1968, when they were advised of his expertise in semen as well as the frequency .of the ability to collect It. The health records of,. the breeding of Charolals cattle, and they contacted him to inspect some cattle Cache Valley indicated that in November, 1967, the bull could not hold himself they had arranged to purchase in Illinois. At this time Mr. Bangart advised the up when he would mount, the right hind leg wouldn't hold his weight. Fuyard 1st Lambs to purchase from him some higher quality purebred Charolals females, was removed from Cache Valley on January 11, 1968 and remained on the Bangarts1 which were the offspring of the famous bull, Fuyard 1st, which Bangart owned. ranch until April , 1968, when he was sent to I. B. B An employee of I. B. B. who While loading the cattle purchased in Illinois, several were sent to the Bangart In unloading the bull from the truck on Its arrival in April observed that assisted Ranch upon his agreement that he would accept them as partial payment on the the animal was lame In his right rear foot and notified the office to so inform Mr, cattle the Lambs' would purchase from him. During these negotiations it was cattle could be purchased for $2, 500 per head, and a credit Bangart. The Bangarts vigorously contested the condition of the bull when It was that the Bangart agreed . sent to I. B. B. and contended that the bull sustained a traumatic Injury which led , , ... ? A , , vi -- j tu jLio.tiga.AkB. tn...ui. .iiijjjsu OX 90UU jhu viiguwi per ncU WUUIU bo auuwcu iui ure Mute to Its eventual demise while In the care and custody of I. B. B. arrangement Involved sixteen head but was subsequently reduced to ten. ! m. .n aPP?al defendants contend that the trial court erred when It ruled as a Lambs' next contact with the Bangarts was In Phoenix, ArUona In the V ' Utter part of February, 1968. The parties discussed the importance of the qual- a of of Lambs on the issue of whether ulinShd directing efct a to his discussed sell Mr. a willingness Bangart ity of herd sire. ,lct h indicated that the bull had had troubla'd.ls W" ?"ed "V? Mr. 1st. in Interest Bangart Fuyard breeding 6 1968- - Defendant, contend a question of whether t was at with hlVright hind leg a year or two previously but he had recovered and was In the ' condition. This representation that the leg had healed and the bull was in good8 good a aor for date 1 . 1st was 17, v a Fuyard u. April t ..a uu w uu . .ucmuub uuwiuwu ..j , condition wi pnysicai rcjicucu ants clalm on these earlier dates thit the Jur have forad 8 of any residual effects of the prior trouble with, the leg. wan orccucr. The parties next met In Caldwell, Idaho in March, 1968. At this cattle The trial court instructed the jury that any liability of the defendants for show, thft Lambs observed and decided to purchase from Bangarts a bull called . 'T", one-qjiar- ter v.ww, ' " J'0' ? "J"" TIlTII A'Tt ... 'Jf? . v |