{ "id": 5149135, "name": "WARREN OUWENGA et al., d/b/a Ouwenga Vegetable and Grain Farms, Plaintiffs-Appellees, v. NU-WAY AG, INC., Defendant-Appellant", "name_abbreviation": "Ouwenga v. Nu-Way Ag, Inc.", "decision_date": "1992-12-03", "docket_number": "No. 3-92-0083", "first_page": "518", "last_page": "527", "citations": [ { "type": "official", "cite": "239 Ill. App. 3d 518" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "408 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179746 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0480-01" ] }, { "cite": "565 N.E.2d 1021", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553152 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0315-01" ] }, { "cite": "506 N.E.2d 1334", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1431", "parenthetical": "court's determination that certain compensatory damage awards were improper defeated claim that damages were precisely measurable" } ], "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 438", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3646369 ], "weight": 2, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0438-01" ] }, { "cite": "561 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2580910 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0714-01" ] }, { "cite": "572 N.E.2d 1094", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606713 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0516-01" ] }, { "cite": "360 N.E.2d 1168", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2974463 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0350-01" ] }, { "cite": "554 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 974", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491518 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0974-01" ] }, { "cite": "365 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 359", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639207 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0359-01" ] }, { "cite": "440 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 1120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3011883 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/1120-01" ] } ], "analysis": { "cardinality": 866, "char_count": 21008, "ocr_confidence": 0.761, "pagerank": { "raw": 1.1290930460653674e-07, "percentile": 0.5753692589799637 }, "sha256": "aa1bdbd2303511f8fe58791e8a69cc3a5d0349288e9fb000bdacde7c75b97211", "simhash": "1:3fe0cdb41c171484", "word_count": 3460 }, "last_updated": "2023-07-14T16:51:04.850958+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HAASE and McCUSKEY, JJ., concur." ], "parties": [ "WARREN OUWENGA et al., d/b/a Ouwenga Vegetable and Grain Farms, Plaintiffs-Appellees, v. NU-WAY AG, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nFollowing a bench trial in the circuit court of Kankakee County, plaintiffs Warren, Sharon and Richard Ouwenga, d/b/a Ouwenga Vegetable & Grain Farms, were awarded judgment and damages against defendant Nu-Way Ag, Inc., for breach of an implied warranty arising from the sale of certain agricultural chemicals. On appeal, defendant contends that the trial court erred in: (1) finding that defendant breached an implied warranty of merchantability; (2) awarding damages for a crop loss on 48 acres; (3) awarding damages for lost trucking revenue; (4) awarding damages for \u201cexpenses associated with the kill\u201d; and (5) awarding prejudgment interest. We affirm in part and reverse in part.\nPlaintiffs own and operate a vegetable and grain farm. Defendant is in the business of providing herbicides and other chemicals to area farmers. In June of 1988, plaintiffs contacted defendant and requested application of a mixture of nitrogen and Treflan herbicide to certain fields on plaintiffs\u2019 farm. On June 30, 1988, employees of defendant prepared three loads of chemicals and spread them over 50 acres of the farm. During the first load, the chemicals were applied to a 22-acre field identified as field 10. Field 10 was planted with cabbage seeds on July 1, 1988. Seven to ten days later, the cabbage plants on that field sprouted and died. Plaintiffs suspected that the problem was caused by heat stress or a condition known as crusting. They consulted with defendant, who assured them that the chemicals had been properly applied as requested.\nOn July 23, 1988, plaintiffs replanted field 10 with cabbage. When plaintiffs replanted the cabbage, they were forced to plant cucumbers instead of cabbage on another field, field 12, in order to keep to their harvesting schedule. Plaintiffs could not plant both field 10 and field 12 with cabbage at the same time because they did not have the labor and equipment necessary for the simultaneous harvest of both fields. The cabbage planted on field 10 again sprouted and died.\nAfter the second failure of field 10, plaintiffs began to suspect a chemical kill. In early August, plaintiffs had a horticulture expert run soil tests on samples from field 10. The tests revealed that the soil contained metribuzine, a triazine commonly used for weed control on soybean crops. Metribuzine is injurious to cabbage. Plaintiffs have never used a chemical containing metribuzine. At the time defendant applied the chemicals to plaintiffs\u2019 field, defendant carried a product containing metribuzine. Dr. John Masiunas, an expert in vegetable herbicides, examined field 10 on August 14. He concluded that the cause of the cabbage kill was an improper application of a chemical, probably a triazine.\nPlaintiffs filed a two-count complaint alleging defendant breached an implied warranty of fitness for a particular purpose and an implied warranty of merchantability under the Uniform Commercial Code (111. Rev. Stat. 1989, ch. 26, pars. 2 \u2014 315, 2 \u2014 314) (the Code). Plaintiffs alleged that the chemical mixture sprayed on field 10 by defendant on June 30 contained metribuzine and that this caused the crop failure. Following a two-day bench trial the court entered judgment in favor of plaintiffs. The court awarded damages in the amount of $137,957.52 for lost cabbage crops on 48 acres, $15,434.44 for lost trucking revenue, and $2,713.85 for expenses associated with the kill. The court also awarded prejudgment interest on all damages except the lost trucking revenue.\nWe first address defendant\u2019s contention that the trial court erred in finding that defendant breached an implied warranty of merchantability. Section 2 \u2014 314 of the Code provides in relevant part:\n\u201c(1) Unless excluded or modified (Section 2 \u2014 316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ***\n(2) Goods to be merchantable must be at least such as\n(c) are fit for the ordinary purposes for which such goods are used.\u201d (Ill. Rev. Stat. 1989, ch. 26, par. 2\u2014314.)\nDefendant argues that plaintiffs failed to establish that the chemicals used by defendant were not \u201cfit for the ordinary purposes for which such goods are used.\u201d In essence, defendant is claiming that plaintiffs failed to prove that defendant\u2019s chemicals killed the cabbage. If the chemicals did kill the cabbage, they were certainly not fit for their ordinary purpose.\nWhether an implied warranty has been breached is a question of fact, and the trial court\u2019s determination on that issue will not be set aside unless it is against the manifest weight of the evidence. (Midland Supply Co. v. Ehret Plumbing & Heating Co. (1982), 108 Ill. App. 3d 1120, 440 N.E.2d 153.) It is well settled that the defective condition of a product can be shown by circumstantial evidence. Erzrumly v. Dominick\u2019s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 365 N.E.2d 684.\nWe find that the evidence presented by plaintiffs in this case, although completely circumstantial, was sufficient to support the trial court\u2019s finding that defendant\u2019s chemicals killed the cabbage on field 10. Soil tests on samples from the affected field revealed the presence of metribuzine, a triazine herbicide injurious to cabbage. Dr. Masiunas, a vegetable herbicide expert, examined the field in August of 1988 to determine the cause of the kill. He was able to rule out the possibility of a disease or insect problem, a drifting over of herbicide applied on adjoining fields, or chemicals being washed in from adjoining fields. Dr. Masiunas concluded that the cause of the kill was an improper application of a triazine herbicide such as metribuzine. The only herbicide used by plaintiffs contained no metribuzine. At the time defendant applied chemicals to plaintiffs\u2019 field on June 28, 1988, defendant had a product in stock called Preview, which contained metribuzine. Most importantly, defendant applied three loads of chemicals to plaintiffs\u2019 field on June 28. Defendant\u2019s records showed that the first load covered 22 acres, the same 22 acres killed. Based on these facts, the trial court could reasonably conclude that defendant applied metribuzine to the field on June 28, thereby breaching an implied warranty to provide merchantable goods, to wit, chemicals suitable for use on cabbage.\nDefendant contends that the trial court ignored the testimony of defendant\u2019s employees who stated that Preview could not be mistaken for Treflan, and that on June 28, 1988, only Treflan and nitrogen were applied to plaintiffs\u2019 field. The trial court was in the best position to weigh the evidence and judge the credibility of the witnesses, and we will not disturb its findings on these issues. DeLong v. Cabinet Wholesalers, Inc. (1990), 196 Ill. App. 3d 974, 554 N.E.2d 574.\nDefendant also contends that it did not breach an implied warranty of fitness for a particular purpose. Our review of the record indicates that the trial court found a breach of an implied warranty of merchantability. Because we have affirmed that finding, we need not decide whether defendant also breached an implied warranty of fitness for a particular purpose.\nDefendant next raises a number of issues concerning the amount of damages awarded to plaintiffs. Defendant first contends that the trial court erred in awarding damages for lost crop profits on 48 acres. Defendant acknowledges that lost profits are a proper element of damages for breach of warranty (Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168), and defendant raises no argument concerning the method and figures used by plaintiffs and the trial court to calculate the loss of profits per acre. However, defendant contends that the court erred in awarding damages for lost profits on the 26 acres identified as field 12 along with the affected 22 acres of field 10. Defendant argues that plaintiffs\u2019 decision to replant field 10 with cabbage, and plant cucumbers instead of cabbage on field 12, was unreasonable and constituted a failure to mitigate damages. We disagree.\nRon Ouwenga testified concerning plaintiffs\u2019 planting and harvesting schedule. Plaintiffs\u2019 labor, equipment, and processing facilities allow them to harvest, process and transport 20 to 30 acres of cabbage in approximately two weeks. Plaintiffs plant fields every 10 to 14 days so that they will have a continuous harvest but will not be overburdened at any one time. By July 23, 1988, it was clear to plaintiffs that something was wrong with the cabbage on field 10. At that point, plaintiffs were preparing to plant field 12. Plaintiffs wanted to avoid replanting field 10 at the same time that they planted field 12 because they would not be able to harvest both fields simultaneously. Plaintiffs therefore decided to plant cucumbers on field 12 and replant field 10 with cabbage. Cucumbers have a shorter period of maturation than cabbage.\nIn light of what plaintiffs knew at the time, this decision was reasonable. On July 23, plaintiffs did not know, and had no reason to suspect, that the failure of field 10 was the result of a chemical kill. Plaintiffs had never suffered a chemical kill before. They first believed the crop failure may have been caused by a heat stress or crusting problem because they had had such problems in the past. Furthermore, defendant told plaintiffs that defendant had applied the proper chemicals as ordered by plaintiffs. Not until after the second planting of field 10 failed did plaintiffs suspect a chemical kill. Under these circumstances, plaintiffs\u2019 decision to replant field 10 and plant cucumbers on field 12 to keep to the harvesting schedule was not unreasonable. If not for the failure of the crops on field 10, field 12 would have been planted with the more profitable cabbage, not cucumbers. The trial court properly included in the damage award the lost profits from the 26 acres of field 12, minus the profits realized on the cucumbers.\nDefendant next contends that the trial court erred in awarding plaintiffs $15,434.44 for lost profits to their trucking operation. Defendant argues that plaintiffs failed to prove this element of damages with a reasonable degree of certainty. While it is not necessary that damages for breach of warranty be calculated with mathematical precision (Burras v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168), basic contract theory requires that damages be proved with reasonable certainty and precludes damages based on conjecture or speculation (Bockman Printing & Services, Inc. v. Baldwin-Gregg, Inc. (1991), 213 Ill. App. 3d 516, 572 N.E.2d 1094).\nIn this case, plaintiffs established that the chemical kill not only resulted in lost profits on the cabbage, but also caused a loss of profits to their trucking operation. Plaintiffs presented evidence to show that the market price of cabbage at the time during which the affected field would have been harvested was $6 per package. This figure was used to calculate lost profits. However, this price reflected the market price for cabbage purchased at plaintiffs\u2019 farm. This did not include the profit plaintiffs make by hauling the cabbage to different parts of the country.\nWe find, however, that plaintiffs failed to present sufficient evidence to establish the amount of lost trucking profits with any degree of reasonable certainty. Ron Ouwenga compared the gross trucking revenue from November of \u201cother years,\u201d apparently 1987, with that of November 1988, and determined that gross revenue in 1988 was down approximately $15,000. He attributed this decrease to the fact that plaintiffs had less cabbage to haul in November of 1988 because of the chemical kill. However, plaintiffs were unable to establish a net loss of trucking revenue. Plaintiffs failed to offer any evidence of savings they realized as a result of the kill, such as fuel, labor and other expenses associated with the operation of their trucking fleet. Moreover, no evidence was presented to show how much cabbage was raised in 1987 or any \u201cother years.\u201d The evidence showed that the plaintiffs suffered through a severe drought in 1988. This may have affected plaintiffs\u2019 trucking revenue as compared to other years, especially in light of the fact that plaintiffs\u2019 revenues for grain hauling also decreased in 1988 by $20,000. Finally, no documented evidence of lost trucking profits was presented. The sum of the evidence concerning the amount of lost revenue consisted of the following testimony of Ron Ouwenga:\n\u201cQ. [Plaintiffs\u2019 attorney]: Did you \u2014 in fact, were you able to determine for the month of November of 1988 what the comparison of gross revenue was compared to these other years?\nA. Yes.\nQ. And how did the gross trucking revenue compare to these other various years?\nA. Fifteen thousand dollars and something. I don\u2019t know the exact figure.\nQ. So a number in excess of fifteen thousand dollars?\nA. Yeah.\nQ. Are you telling the Court this is the number that your trucking revenue was down for that one particular month?\nA. For one month.\nQ. Now, would all of this production have been done in just that one month?\nA. Probably not the \u2014 probably\u2014that\u2019s a minimum for that month. It probably would have began a couple of weeks in October, toward the end of October and probably extended into December may be a week.\nQ. So the trucking revenue in general was down substantially more than fifteen thousand in the principal month?\nA. Yeah. And that was the most clear cut number we could come up with. That month would have been all that cabbage, so\u2014\nQ. Would your gross revenues reflect the fact that you were able to find some other work for those drivers?\nA. Yeah, somewhat.\nQ. And, obviously, if you are not hauling cabbage and the trucks are sitting you would have saved gasoline. Were, in fact, the trucks sitting or being operated?\nA. They were being operated when we could find work for them. The work that we established for them was short term. You know, we had it on short notice, so we couldn\u2019t lock in a good job. Much of the work and the main purpose of the work that we lined up was to keep the drivers busy. If we don\u2019t keep them busy we have to lay them off and they\u2019ll find a job else where.\nQ. How would you compare the gross loss for November with what would have been the net loss? I mean, are you telling me that you really didn\u2019t save any expenses at all?\nA. Maybe some, but not much. It would be difficult to determine any expenses we would have saved.\nQ. Let\u2019s be generous now. About how much?\nA. I don\u2019t know. I would say a couple thousand dollars maybe.\nQ. So a net loss of at least thirteen thousand?\nA. I would say that would be fair. The \u2014 now the work that we did line up for the drivers was \u2014 what I am saying is it was strictly \u2014 you know, most of that we didn\u2019t have planned. It was strictly to keep them busy. So for that work we may have not even broke even on that work. It\u2019s just strictly to keep them busy because they\u2019re available to us as employees.\nQ. Whatever you generated by finding substitute work though, would have been reported in your gross revenues?\nA. Yeah. That would be reported in the gross revenue.\nQ. Even after that \u2014 reporting what that is, you still determined there is still a fifteen thousand plus loss?\nA. Right. Right. And that \u2014 that number could be different too.\u201d\nIn our opinion, a simple comparison between plaintiffs\u2019 gross trucking revenue of November of 1988 and November of \u201cother years\u201d was an insufficient basis upon which to award damages. Without more evidence, an award based on that figure was purely speculative. Plaintiffs failed to establish with reasonable certainty the actual amount of lost profits suffered by its trucking operation as a result of defendant\u2019s breach of warranty. Accordingly, we reverse the trial court\u2019s award of $15,434.44 for lost trucking revenue.\nDefendant next contends that the trial court erred in awarding plaintiffs $2,713.85 for \u201cexpenses associated with the kill.\u201d This damage award suffers from the same infirmity as the award for lost trucking revenue discussed above. The evidence presented at trial on this item was simply insufficient to determine the extent of plaintiffs\u2019 damages with any reasonable certainty. Plaintiffs presented no documentary evidence of this loss. The only evidence of these expenses consisted of a few brief statements in the testimony of Ron Ouwenga. He stated as follows:\n\u201cQ. [Plaintiffs\u2019 attorney]: Tell me what your expenses have been with regard to trying to determine the loss and what\u2014 what was the contaminate.\nA. We were requested to put together a report, which I did, of \u2014 well, a loss report. It took several weeks of my time. We paid for the soil tests that were taken.\nQ. Do you remember what that was?\nA. The exact number I don\u2019t.\nQ. What other expenses were there?\nA. There are various administrative, office expenses, typing and things like that. Which this took several weeks. The paying for the experts to come in and look at the field.\nQ. Did you pay them?\nA. Well, we paid for entertainment for the day. Things like that.\u201d\nWe are again compelled to find that plaintiffs failed to prove the amount of their damages with reasonable certainty. The award of $2,713.85 for \u201cexpenses associated with the kill\u201d is therefore reversed.\nFinally, defendant contends that the trial court should not have awarded prejudgment interest. We agree that the award was improper. The trial court relied on section 2 of \u201cAn Act in relation to the rate of interest ***\u201d (Ill. Rev. Stat. 1989, ch. 17, par. 6402) to award prejudgment interest on the damages attributable to the crop loss and the expenses associated with the kill. Section 2 provides:\n\u201cCreditors shall be allowed to receive interest at the rate of five (5) per centum per annum for all monies after they become due on any bond, bill, promissory note, or other instrument of writing; *** and on money withheld by an unreasonable and vexatious delay of payment.\u201d (Ill. Rev. Stat. 1989, ch. 17, par. 6402.)\nAbsent an agreement between the parties, prejudgment interest is properly awarded only when specifically provided for by statute (Fen- ton v. Board of Trustees (1990), 203 Ill. App. 3d 714, 561 N.E.2d 105), and only if the damages are liquidated or subject to exact computation (Alguire v. Walker (1987), 154 Ill. App. 3d 438, 506 N.E.2d 1334).\nInitially, we disagree with the trial court\u2019s finding that the damages in this case were \u201cclearly and simply ascertainable by computation.\u201d Defendant had no way of knowing the extent of plaintiffs\u2019 damages prior to litigation of this case. In fact, plaintiffs submitted alternative measures of lost profit damages to the trial court in their closing argument. Moreover, our determination that the damage award for \u201cexpenses associated with the kill\u201d was improper because those damages were insufficiently proven defeats the claim that damages were subject to exact computation. See Alguire, 154 Ill. App. 3d at 448, 506 N.E.2d at 1431 (court\u2019s determination that certain compensatory damage awards were improper defeated claim that damages were precisely measurable).\nEven if the damages here were \u201csimply ascertainable by computation,\u201d prejudgment interest was not warranted in this case. Under the statute, plaintiffs would be entitled to interest only in the event of an \u201cunreasonable and vexatious delay of payment\u201d by defendant. Clearly, no such delay occurred in this case. Neither a good-faith dispute concerning the existence of a legal obligation nor the defense of a lawsuit can be regarded as an unreasonable and vexatious delay of payment. (Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 565 N.E.2d 1021; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) Here, it is apparent that defendant had a good-faith defense to liability. No action of defendant, other than defense of this suit, occasioned the delay in payment. For these reasons, we reverse the trial court\u2019s award of prejudgment interest.\nIn summary, we affirm the trial court\u2019s finding that defendant breached an implied warranty of merchantability. The award of damages in the amount of $137,957.62 for loss of the cabbage crop is affirmed. The damages awarded for expenses associated with the kill and loss of trucking revenue are reversed. The award of prejudgment interest is reversed.\nAffirmed in part; reversed in part.\nHAASE and McCUSKEY, JJ., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (R.J. Lannon, Jr., of counsel), and Karen C. Eiten, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.", "J. Dennis Marek, of Ackman, Marek, Boyd & Simutis, of Kankakee (Robert W. Boyd, of counsel), for appellees." ], "corrections": "", "head_matter": "WARREN OUWENGA et al., d/b/a Ouwenga Vegetable and Grain Farms, Plaintiffs-Appellees, v. NU-WAY AG, INC., Defendant-Appellant.\nThird District\nNo. 3-92-0083\nOpinion filed December 3, 1992.\nHerbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (R.J. Lannon, Jr., of counsel), and Karen C. Eiten, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.\nJ. Dennis Marek, of Ackman, Marek, Boyd & Simutis, of Kankakee (Robert W. Boyd, of counsel), for appellees." }, "file_name": "0518-01", "first_page_order": 538, "last_page_order": 547 }