Missouri Farmers Ass'n v. McBee
787 S.W.2d 756, 12 U.C.C. Rep. Serv. 2d (West) 32, 1990 Mo. App. LEXIS 316 (1990)
Rule of Law:
Expert testimony lacking personal knowledge or proper foundation for the underlying information (such as an unadmitted hearsay report) is improperly admitted, and implied warranties under the Uniform Commercial Code do not apply to contracts where the predominant purpose is the rendition of services rather than the sale of goods.
Facts:
- Donald McBee had farmed for over 42 years and had raised soybeans for at least 25 years in Carroll County.
- In June 1986, Mr. McBee hired Jim Clevenger to plant his 51-acre soybean crop.
- On July 26, 1986, Mr. McBee requested Missouri Farmers Association, Inc. (MFA) to spray his 51-acre soybean field for cocklebur.
- MFA sprayed all but a 14-foot strip of Mr. McBee’s field, selecting the chemical and deciding when and how the spraying was done.
- The evening before spraying, Mr. McBee’s soybeans were a good color and height.
- The evening after the beans were sprayed, virtually all the sprayed beans on the field were brown, crumbly, dry, and died within two or three days.
- The beans within the 14-foot unsprayed strip maintained their good stand and color.
Procedural Posture:
- Missouri Farmers Association, Inc. (MFA) sued Donald McBee in a judge-tried trial court (court of first instance) on an account for spraying his soybeans.
- Donald McBee counterclaimed for the net value of his soybean crop, alleging that the herbicide killed his soybeans.
- The trial court entered judgment for MFA on its claim and also entered judgment for MFA on Mr. McBee’s counterclaim.
- Donald McBee (appellant) appealed the trial court's judgment.
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Issue:
Does a trial court commit reversible error by admitting expert testimony about the identity of a chemical sprayed and the contents of an unadmitted laboratory report without proper foundation, and do implied warranties under the Uniform Commercial Code apply to a hybrid contract for both goods and services when the predominant purpose is the rendition of service?
Opinions:
Majority - Ulrich, Judge
Yes, the trial court erred by admitting the expert testimony without proper foundation, and no, implied warranties under the Uniform Commercial Code do not apply to hybrid contracts whose predominant purpose is the rendition of services. First, the trial court improperly admitted expert testimony from Dr. George Wright concerning the identity of the chemical sprayed and the contents of a soil analysis report. Dr. Wright admitted he had no personal knowledge of the chemical sprayed, and no other competent evidence was introduced to identify it. Furthermore, Dr. Wright's testimony about the soil analysis report was based on hearsay, as he did not analyze the samples, was not present during analysis, and the report itself was not admitted into evidence or qualified as an exception to the hearsay rule. The court distinguished Albers v. Hemphill Contracting Co., Inc. by noting that in Albers, the expert's report was a summary of admissible business records, unlike the report in this case. Therefore, this testimony must be excluded from consideration. Second, Mr. McBee's counterclaim for breach of implied warranties under UCC §§ 400.2-314 and 400.2-315 fails because these provisions apply only to 'transactions in goods.' When a contract is a 'hybrid or mixed contract' for both goods and services, the 'dominant element test' (from Cork Plumbing Co. v. Martin Bloom Associates) is applied to determine its nature. This test asks whether the contract's predominant purpose is the rendition of service, with goods incidentally involved, or a transaction for sale, with services incidentally involved. Applying this test, the court concluded that the dominant element of the contract was service, as Mr. McBee contacted MFA about spraying, and MFA selected the chemicals, time, and method. Following persuasive authority from other jurisdictions, such as Samuelson v. Chutich, this court holds that implied warranties do not apply to service contracts, limiting liability to acts of negligence. Consequently, the judgment in favor of MFA on its petition is reversed due to the lack of substantial evidence after excluding the improperly admitted testimony, but the judgment in favor of MFA on Mr. McBee's counterclaim is affirmed because his claim for breach of implied warranties is not applicable to a service contract.
Analysis:
This case significantly clarifies two areas of law in Missouri: evidentiary rules regarding expert testimony and the applicability of UCC implied warranties to hybrid contracts. It emphasizes that experts must either have personal knowledge or a proper foundation for any information they present, particularly when relying on reports not admitted into evidence. More importantly, the adoption of the 'dominant element test' for hybrid contracts explicitly limits the reach of UCC implied warranties, shifting potential liability for service providers from strict warranty claims to negligence actions for contracts predominantly involving services. This decision provides critical guidance for businesses offering mixed goods-and-services packages and affects how litigants pursue claims arising from such agreements.
