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DECEMBER 14, 1983




Plaintiff J. R. Vince, the purchaser of cattle, sued J. D. Broome, the seller of the cattle and the stockyard through which the cattle were sold, Southeast Mississippi Livestock Farmers Association, for breach of implied warranty of merchantability of the cattle under Uniform Commercial Code. From a jury verdict for $2,640.23 in favor of the plaintiff in the County Court of Forrest County, the defendant seller appealed. The circuit court reversed holding that the Uniform Commercial Code did not apply to a sale of livestock and that the county court erred in submitting to the jury the factual determination of the merchant status of a farmer. The reversal of the judgment of the county court gave rise to this appeal.

The question for determination here is whether a farmer selling cattle through the stockyard was a merchant

 under Mississippi Code Annotated section 75-2-314 (1972) at the time this action arose. *fn1


 On May 19, 1980, J. R. Vince purchased fifteen head of cattle at a cattle auction barn owned and operated by the Southeast Mississippi Livestock Farmers Association (Stockyard). Vince was an order buyer and as such, purchased cattle for resale to feed lot operations. After purchasing these cattle, Vince transported them some sixty miles to his farm and unloaded them. During transfer and shortly afterwards the cattle became ill. Five of them died and five others lost a great amount of weight from illness.

 On the day of the purchase Vince notified Jack Minter, the manager of the Stockyard, of his sick and dead cattle. J. D. Broome, the seller of the cattle, was also notified. Broome admitted that prior to taking the cattle to the sale, some of his cows had accidentally gotten into his feed lot and had overeaten. The veterinarian who treated the cattle verified that they were suffering from a toxic condition caused by overeating.

 This lawsuit alleged that by selling cattle that were sick at the time of the sale, J. D. Broome breached the implied warranty of merchantability under the Uniform Commercial Code under section 75-2-314. Although suit was brought against both the seller and the stockyard, the trial court sustained a motion for directed verdict as to the stockyard. *fn2


 Initially, this case addresses the merchant status of a farmer and raises for this Court's first consideration the question of whether our Uniform Commercial Code exempts farmers from the application of the entire Code.

 We look to legislative history for answers to questions of such import where the enactment of such provides a guideline. Here, however, our original legislative history provides no enlightenment as to whether the question was even anticipated. From a study of the Code, we find no exemption of farmers as a merchant class.

 However, subsequent to the original enactment of the Uniform Commercial Code on July 1, 1981, the legislature did amend one section of the Code, section

 75-2-314, to exclude the sale of cattle, hogs, and sheep from the implied warranty of merchantability. Inferentially by this action the legislature acknowledged that a farmer may factually in a particular case be considered a "merchant" under the Code definition (section 75-2-104), but the legislature did not exclude farmers as a merchant class from the definition under section 75-2-104.

 We are compelled to note that some farming operations are worth millions of dollars. These farmers are engaged in multicommercial transactions and are generally considered to be agribusiness persons. It would stretch the imagination to conclude that all these operations were exempt from coverage under the Commercial Code.

 On the other hand, some farming operations are performed by such casual and inexperienced sellers that they would not be included within the merchant definition.

 Therefore, this Court concludes that farmers as an occupation may be a merchant class where their particular factual situation falls into the definition of merchant as defined in Mississippi Code Annotated section 75-2-104.


 Having determined that farmers may be a merchant class within the provisions of the Uniform Commercial Code, we next address this particular lawsuit involving an alleged breach of an implied warranty under section 75-2-314 where "goods" were sold by a "merchant."

 There are five elements which a plaintiff must prove to recover under section 75-2-314: (1) That a "merchant" sold "goods," and he was a merchant with respect to "goods of the kind" involved in the transaction, (2) which were not merchantable at the time of the sale, and (3) injuries and damages to the plaintiff or his property, (4) caused proximately and in fact by the defective nature of the goods, and (5) notice to the seller of the injury. See, White and Summers, Uniform Commercial Code 9-6 (1980).

 Reference to several pertinent sections of Mississippi Uniform Commercial Code sections 75-1-101 ...

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