503 F2d 953 Fear Ranches Inc v. H C Berry

503 F.2d 953

FEAR RANCHES, INC., Appellant,
H. C. BERRY, d/b/a Berry Ranch Co., et al., Appellees.

No. 73-1297.

United States Court of Appeals, Tenth Circuit.

Sept. 25, 1974.

Milton A. Oman, Salt Lake City, Utah, for appellant.

Frank H. Allen, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N.M., for appellees, H. C. Berry, d/b/a Berry Ranch Co., and Berry Land and Cattle Co., Inc.

Charles C. Spann, Grantham, Spann & Sanchez, Albuquerque, N.M., and Krehbiel & Alsup, Clayton, N.M., for appellee, Kelly Perschbacker.

Before JONES,1 SETH and DOYLE, Circuit Judges.

SETH, Circuit Judge.

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An opinion on the first appeal of this case was filed as Fear Ranches, Inc. v. H. C. Berry, et al., 10 Cir., 470 F.2d 905. On the first appeal, all issues were disposed of except as to a point concerning the custom and usage prevailing in New Mexico. On this point the trial judge received evidence but made no finding. The case was remanded for additional findings. These have now been made and the case is before us as No. 73-1297.


The trial court on remand, in Supple mental Findings of Fact, found that:


'There is a usage of trade in the cattle industry in New Mexico that a knowledgeable buyer, relying entirely on his own judgment, in buying cattle from a knowledgeable seller, who makes no representations as to the condition of the cattle, takes the animals as he selects them and there are no implied warranties of the fitness of the cattle.'


This Finding No. 7 excludes any implied warranty of fitness for a particular purpose. The finding of the buyer's reliance on his own judgment is supported by the record. This self-reliance included the matter of whether or not the cattle were free from disease. This was the only issue remaining after the original opinion.


The judgment is affirmed.


Of the Fifth Circuit, sitting by designation