Opinion
Rehearing Denied Oct. 22, 1974.
Rodden & Woods, Richard T. Paynter, Jr., Denver, for plaintiff-appellant.
Robert Bugdanowitz, Denver, for defendant-appellee.
ENOCH, Judge.
Plaintiff Richard Segelke initiated this action to recover damages for breach of contract. The jury returned a verdict for plaintiff in the amount of $41,212.96. Defendant's motion for judgment notwithstanding the verdict was granted, and the court also granted defendant's motions for a directed verdict which had been taken under advisement when made at the close of plaintiff's case and before the case was submitted to the jury. Plaintiff appeals from this judgment. We reverse. The contract which the parties executed in February 1966 provided that plaintiff was to sell to defendant 30,000 hundredweights (cwt.) of potatoes during the coming season. Plaintiff was to deliver the potatoes for storage at Julesburg or Sedgwick for ultimate processing into potato chips at defendant's plant in Houston, Texas. The contract required the potatoes to be U.S. Commercial Grade and of such quality as to chip satisfactorily 'upon arrival.' The parties presented conflicting testimony as to whether the conditions of both grade and chip potential were to apply upon the delivery of potatoes to storage or whether the latter condition was to be met when the potatoes reached the plant for processing.
After the harvesting of his crop in the fall of 1966, plaintiff delivered in excess of 30,000 cwt. of potatoes to the stipulated storage facilities. Plaintiff testified that in the fall and winter of 1966 defendant took eleven 450 cwt. loads of the potatoes from storage for processing in defendant's plant in Denver. Defendant paid plaintiff for these potatoes that were processed. However, defendant refused to make any further payment under the contract, claiming that pliantiff had delivered non-conforming potatoes, that were neither U.S. Commercial Grade, nor chippable.
The court granted defendant's motions on the ground that plaintiff had failed as a matter of law to prove delivery of U.S. Commercial Grade potatoes to Julesburg and Sedgwick. Plaintiff contends that there was sufficient evidence that plaintiff delivered to defendant U.S. Commercial Grade potatoes and that the jury verdict should be reinstated.
The standards for evaluating motions for directed verdict and motions for judgment notwithstanding the verdict are essentially the same. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000. The trial court must view the evidence in the light most favorable to the party moved against and apply every reasonable inference of fact that can legitimately be drawn therefrom in that party's favor. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391; Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93. Then, such motions may be granted only where the evidence, so considered, is such that no reasonable man could decide the contested issues against the moving party. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778.
Defendant contends that plaintiff and his other witnesses, who were also potato farmers, were not qualified to testify that the specified grade of potato had been delivered because the witnesses did not know the exact government definition of U.S. Commercial Grade potatoes. However, farmers are competent to offer expert testimony concerning matters within their experience in a particular locality. Mayhew v. Galzier, 68 Colo. 350, 189 P. 843. Plaintiff was the son of a potato farmer and had raised potatoes for eight years prior to 1966. Even though he misstated the technical definition of U.S. Commercial Grade, he did testify that in his opinion the potatoes delivered met the conditions of the contract. Plaintiff's neighbor, who had grown potatoes for twenty-eight years, testified that the plaintiff's crop was the best he had ever seen, and that when he took some of plaintiff's potatoes out of storage, they very easily met U.S. Commercial Grade. The neighbor described the applicable general grade specification more stringently than it had been even in 1966, admitting that he could no longer recall certain percentage defect factors. It is noted that this trial took place six years after the harvest in question. Plaintiff's father-in-law, a potato grower for approximately twenty years, also testified that plaintiff's potatoes met the neighbor's overstringent specification. Furthermore his testimony as to the specifications of the required grade of potatoes was reasonably accurate. Two experienced employees of plaintiff supplemented the above testimony by agreeing that the condition of the potatoes upon entry into storage was excellent. Defendant's agent admitted accepting and paying for certain of plaintiff's potatoes after removing them from storage, although asserting that none of these achieved requisite contract grade. Though defendant presented conflicting evidence, plaintiff's evidence was sufficient to require that the case be submitted to the jury, and thus it was error for the court to grant defendant's motions.
Judgment is reversed and the cause remanded with directions to reinstate that jury verdict and enter judgment thereon.
COYTE and RULAND, JJ., concur.