No. 12237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

GEORGE WADDELL, 

Plai-ntiff and Respondent, 

-iMERICAN BREEDERS SERVICE INC., 

a corporation, 

Defendant and Appellant, 

Appeal. from: District Court of the Sixteenth Judicial. District, 

Honorable A. B. Martin, Judge presiding. 

Counsel. of Record : 

For Appellant : 

Lucas, Jardine & Monaghan, Miles City, Montana. 

Thomas M. Monaghan argued, Miles City, Montana. 

For Respondent : 

Gene Huntley argued, Baker, Montana. 

Submitted: October 20, 1972 

Decided : JAE117 1973 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a jury verdict in favor of plaintiff 

in an action to recover damages brought in the district court 

of the sixteenth judicial district, county of Custer. Defendant 

moved for a judgment notwithstanding the verdict and for a new 

trial. Both motions were denied. 

Hereinafter, plaintiff George Waddell will be referred to 

as Waddell, and defendant American Breeders Service, Inc. will 

be referred to as ABS. 

Waddell is a cattle rancher operating in the Pine Hills, 

east of Miles City. In 1966, he had built up a herd of some 200 

to 250 head of cows and some 100 to 150 yearlings in a calf-cow 

operation. He became interested in the ABS artificial insemination program through discussions with Bill Stewart, the ABS 

representative in that area. He was told by Mr. Stewart that if 

he used the ABS service he would have available better bulls, 

that he would get bigger and more uniform calves; that such service would be as successful as natural service; that such service 

would be just as cheap; and that he could get 70% service during 

the first heat period and should get 70% calves. 

During the 1966-67 winter, Waddell enrolled in a school 

held by ABS at Miles City, where he learned how to successfully 

artificially inseminate his herd. The cost of the course was 

$100. At the school he was given a manual entitled "American 

Breeders Service A1 Manual--Management Manual". This book was 

introduced as an exhibit and considerable testimony was introduced 

by reading from the manual headings such statements as: "The 

maximum use of outstanding bulls"; "~reatly increased uniformity"; 

I I Improved cow herd"; "Carcass quality improvement1'; and "Under 

good management most operators report 80 to 90 percent". From 

the manual the following was read into the record: 
"The range in heat detection levels reported 

around the country shows a relatively wide 

variation. Under good management most operators report 80 to 90 percent detection rates 

for first service. Assuming a 70 percent 

conception this percentage of cows settled after 

one cycle compares very favorably with natural 

service averages under similar conditions. 

"* * * it would be just as cheap or cheaper 

than using natural service. It 

As part of the schooling Waddell was urged to purchase 

frozen semen from ABS for these reasons: 

1. Maximum use of outstanding bulls. 

2. Increase the uniformity in his calf crop. 

3. An improved cow herd. 

4. Carcass quality improvement. 

5. Improved herd records. 

6. Better health protection for his livestock. 

7. Better protection against inherent defects with respect 

to his livestock. 

8. Facilitation of crossbreeding. 

9. A cheaper method of breeding than natural service. 

As a result of the school and waddell's interest in the 

program, in the spring of 1967 he purchased 40 ampules of Black 

Angus semen from ABS bull Skylandmere, to use for the 1967 

breeding season. Waddell's cattle were Hereford and the reason 

he gave for purchasing Black Angus semen was to crossbreed and 

thereby get a black calf with either a white or brockel face, 

He maintained that by using this system he could tell those 

calves that came from the artificial insemination from those 

sired by his own Hereford bulls, For the 1967 breeding season 

Waddell picked at random from his herd about 50 cows to be inseminated. Waddell performed the insemination work, put the cows 

into a separate pasture and put a clean-up bull in with them. 

As a result of this first year program, his 1968 calf crop was 

a little above 70% and he was well satisfied with the program. 

For the 1968 breeding season,Waddell placed another order 

for forty ampules of frozen semen from the same bull, Skylandmere. 
That year instead of a random selection, Waddell picked his best 

cows and the earliest calfing cows. 55 of these cows were picked 

and inseminated. All were Herefords. 

In 1968, the insemination work was done by Kelly Waddell, 

plaintiff's son, hereinafter called Kelly. Kelly also had some 

cattle and during the year 1967-68 he had become interested in 

the artificial insemination program. He attended the same school 

his father had attended during the 1967-68 session. When Waddell 

ordered his 40 ampules from Skylandmere, Kelly put in an order 

for 16 ampules of semen from the bull Leader, a Shorthorn bull. 

Kelly and his father conducted their artificial insemination 

program together with Kelly doing the work and Waddell riding 

herd and observing. The semen they purchased from ABS came in 

a jug or refrigerator, where it was kept frozen by nitrogen. 

Kelly testified, as did Waddell from his observation, that the 

caws were uniformly inseminated; that no special problems arose 

in the process; and that the weather factor was good, Bill Stewart, 

the ABS representative, was present during part of the work to 

see if Kelly was doing it correctly and Stewart helped with 6 to 

8 cows. 

Upon completion of the insemination, the cows were turned 

into a separate pasture where Waddell had a clean-up bull to 

cover those cows where artificial insemination did not take. 

Several weeks later Waddell noted that the clean-up bull was over 

used, so he put in another bull. 

When the spring of 1969 came, Waddell was faced with a crop 

failure. Of the 40 ampules of semen used, he got only 3 black 

calves; as against the 1968 crop of 70% he had but 7% in 1969. 

Yet, Kelly's cows, impregnated at the same time as Waddells, 

resulted in: 12 heifers were impregnated; 1 died, 3 were sold 

as bred heifers, and of the remaining 8 heifers 6 were crossbred. 

A 75% result. So, the two herds handled under exactly the same 

conditions by the same inseminator resulted in Waddell getting 

a 7% calf crop, and Kelly a 75%. The one difference being that 

Kelly had semen from a different bull. 
Waddell notified Bill Stewart in the spring of 1969 of 

his calf crop failure and Stewart immediately contacted ABS 

offices to check what might have happened. At the request of 

ABS stewart had Waddell collect all the used ampules. Each 

ampule had a code mark that identified it as belonging to a 

certain bull, which aided ABS to trace the semen to the exact 

date of collection, processing and shipping. Shipments of semen 

from the same bull, with the same code, were traced to other 

cattlemen and some of it was recovered for testing. Tests were 

made by the ABS laboratory and by Dr. Peter Burfening, an 

assistant professor of physiology in the animal science department 

of Montana State University. His test figures corresponded 

favorably with the tests conducted by the ABS laboratory in that 

they found the frozen semen from 35% to 40% motile. The ABS 

tests showed a 29% motility factor. Both Dr. Burfening and Dr. 

Bartless, vice-president of ABS, testified that these percentages 

were within acceptable standards. 

Defendant sets forth four issues for consideration: 

1. Whether the district court erred in refusing to direct 

a verdict in favor of defendant and against plaintiff at the 

close of plaintiff's testimony? 

2. Whether the district court erred in refusing to allow 

defendant to present the testimony of Jack M. Brooks and Louie 

Petrie? 

3. Whether there were errors in law occurring at the trial 

and excepted to by defendant, which prevented defendant from having 

a fair and impartial trial? 

4. Whether the district court erred in giving and refusing 

certain instructions to the jury? 

The first issue alleges error in the trial court's refusal 

to direct a verdict in defendant's favor at the close of plaintiff's 

case on either of plaintiff's theories of express or implied 

warranty. , 
This Court in Mueller v. Svejkovsky, 153 Mont. 416, 420, 

455 P.2d 265, held: 

It On an appeal from a motion denying a directed 

verdict there are three rules which apply. (1) The evidence introduced by the plaintiff will 

be considered in the light most favorable to him. 

(2) The conclusion sought to be drawn from the 

facts must follow as a matter of law. (3) Only 

the evidence of the plaintiff will be considered." 

Where there is substantial evidence to support the trial 

court's findings at the conclusion of plaintiff's case, and there 

is no clear preponderance against it, the court's ruling will 

not be disturbed on appeal. Spencer v. Robertson, 151 Mont. 507, 

Defendant argues that even if we find the trial court was 

not in error, that the issue must be resolved in its favor due 

to the fact there was a failure to timely notify the defendant. 

As we view defendant's argument, plaintiff should have notified 

defendant when he found he had an overworked bull, not some ten 

months later when he found he had a 7% calf crop and not the 

70% of the year before. We find no merit to this argument. 

Nor can we accept defendant's argument that as a matter 

of law plaintiff did not give notice of a breach of warranty 

until after he should have discovered it, Defendant submitted 

an instruction that allowed the jury to consider whether the 

notice was adequate. Court's instruction No. 12 reads: 

" A seller is not liable for a breach of warranty 

unless the buyer gave him notice of such breach 

within a reasonable time after the buyer knew, or as 

a reasonable person ought to have known of the alleged 

breach of warranty. What amounts to a reasonable 

time depends upon the circumstances and the kind of 

product involved. 

It Notice may be oral or in writing; no particular form 

of notice is required. It merely must inform the 

Seller of the alleged breach of warranty and the buyer's 

intention to look to him for damages. Whether the 

buyer gave this information to the Seller and if so 

whether he acted within a reasonable time in this 

case, is for you to determine, 11 

In effect, defendant wants it two ways. At trial ABS 

asked for and'got an instruction asking the jury to rule on the 

notice in its favor, and when the jury did not, it asks this 

Court to rule that the instruction should never have been given. 

This we cannot do, for to do so would allow defendant to put the 
trial court in error on its own instruction. We have held that 

where a party fails to make an objection to an instruction, it 

is bound by it. Seder v. Peter Kiewit sons' Co., 156 Mont. 322, 

479 P.2d 448; Nelson v. C & C Plywood Corp., 154 Mont, 414, 465 P. 

2d 314, 39 ALR3rd 893; 5 C.J.S. Appeal & Error $ 1514; 5 Am Jur 2d, 

Appeal & Error $ 618. 

Having been so instructed, it became a jury question as to 

whether or not the notice was adequate timewise. The Fourth 

Circuit Court of Appeals in Gober v. Revlon Inc., 317 F.2d 47, 

construing a California statute similar to our statute on notice, 

ruled that a six months delay in giving notice was not unreasonable 

as a matter of law. See also: Maecherlein v. Sealy Mattress Co., 

145 C.A.2d 275, 302 P.2d 331. 

~ontana's statute, section 87A-2-607, R.C.M. 1947, provides 

in pertinent part: 

"Where a tender [of goods] has been accepted 

"(a) the buyer must within a reasonable time after 

he discovers or should have discovered any breach 

notify the seller of breach or be barred from any 

remedy". 

This being a jury question and the jury having found proper 

notice was given when Waddell found he had only a 7% calf crop 

in the spring of 1969, we find no error. 

Defendant relies on Whittington v. Eli Lilly and Company, 

(D.C. W.Va. 1971) 333 F.Supp. 98, to support its position that 

there is no express or implied warranty in this case. Whittington 

is not comparable on the facts. There, a woman purchased birth 

be 

control pills which were claimed to / "virtually 100% protection". 

They were not 100% effective, and she brought the action on a 

breach of warranty theory against the drug manufacturer. The 

uncontradicted proof showed a pregnancy rate of women taking the 

pill never exceeded 1.9 pregnancies per 100 women on the pill. 

The court held this percentage provided "virtually 100% protection". 

Too, in Whittington, the action was brought by a remote purchaser 

apparently on a common law basis. Here, the action is brought 
under the Uniform Commercial Code, sections 87A-2-313, 314,315, 

R.C.M. 1947, by a purchaser directly from the seller, 

In the instant case, warranties made to Waddell were not 

met, nor were those implied warranties of merchantability and 

fitness met. Prior to using artificial insemination Waddell got 

a 95% calf crop via natural service, In 1967, he got a 70% 

calf crop with artificial insemination; in 1968 he got a 7% calf 

crop using semen from the same bull, under almost identical 

conditions. The only logical inference is that something was 

wrong with the semen purchased in 1968 from ABS by Waddell. 

~efendant's second issue concerns the trial court's refusal 

to allow the testimony of Louie Petrie and J.M. Brooks. We 

find no error in the court's ruling. The testimony did not bear 

directly on the specific issues presented, 

Mr. Brooks, a rancher living at Cohagen, Montana runs a 

cow-calf operation of between 300 and 400 head. He had used the 

artificial insemination program for some five years, and kept 

rather complete records of his breeding program. Defendant 

sought to introduce his testimony to show the management techniques 

used in his artificial insemination program, the importance of the 

inseminator, and the importance of keeping records. Defendant 

argues that such testimony goes directly to the issue because of 

the fact that Waddell kept no records, contrary to instructions 

given at the school; and that this was a primary cause or factor 

in Waddell's calf crop failure. Too, Waddell had testified that 

he knew at least 75% of his cattle by sight and defendant desired 

to get from ~rooks' testimony whether that 75% identification 

was common. Also, Brooks had used semen from Skylandmere in 1968 

with successful results. 

The court ruled that Brooks could testify if defendant 

could establish that Brooks used Skylandmere's semen labeled 

804K, could identify it, and got calves. Apparently this could 

not be established; defendant withdrew Brooks as a witness, 
The testimony of Petrie, a rancher who also used ~lcylandmere's 

semen in 1968, was offered for the same reasons that ~rooks' 

testimony was offered and was not allowed, in that such testimony did not relate to the facts of this case. We find no error. 

~efendant's third issue conerns whether or not defendant 

received a fair trial, This issue reargues issue No. 2 and 

further argues that the court erred in allowing Kelly Waddell 

to testify as to why he got over a 70% calf crop, while his 

father got only 7%. Kelly was asked: 

"Mr. Waddell, do you know of anything that could 

account for the difference between the percentage 

of calf crop you received from cattle, and the 

percentage of calf crop your father received, other 

than faulty semen? " 

Objection was made that the question called for a conclusion 

of the witness and invaded the province of the jury, The objection 

was overruled, the court stating: 

"~ou'll have an opportunity in cross-examination 

to explore his reasons, 11 

Kelly then testified: 

"I don't see no reason to. The semen was just bad." 

Defendant argues that this dealt with one of the main issues 

and was prejudicial. We find this not so. Defendant fully 

cross-examined Kelly, noted for the jury's consideration that 

he was not a licensed inseminator; that even though he had 

attended the school he did not have a manual (he used his 

father's) and that he had only read part of the manual. All of 

this was before the jury, plus the fact that Kelly was supervised, 

at least for several head, during the insemination process by 

ABS representative Bill Stewart, We find no error. 

The final issue concerns the trial court's giving certain 

instructions and its failure to give several of defendant's offered 

instructions, Defendant argues the court's failure to give 

several of defendant's instructions prevented the jury from being 

fully and properly instructed on the law applicable to the case, 
We have carefully studied the instructions given and those 

refused and find no error. Several of defendant ' s instructions 

were refused as being repetitious and properly so. The court 

properly instructed the jury on implied warranty and express 

warranty. Reading all of the court's instructions together 

we find the jury was properly instructed on the law applicable 

to the case. 

Defendant takes exception to the court's instruction on 

damages. Court's Instruction No. 20 reads: 

"Every person who suffers detriment from the unlawful 

act or omission of another person may recover from 

him a compensation therefor in money which is called 

damages. In this case detriment is the loss or harm 

suffered. The measure of damages is the amount which 

will compensate for all the detriment proximately 

caused thereby hereinbefore defined, whether it could 

have been anticipated or not. I I 

This is an approved WIG instruction on damages and we find 

no error. 

Judgment of the trial court is affirmed. 

L' /z!h4W+$-&4 Assoc ate Justices