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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
July 27, 1999
A party may file with the Supreme Court a
                                                                                         Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                         Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                         of Wisconsin              STATS.
No.                                                                                      98-2903
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
DISTRICT III
ERLAND ANDERSON, D/B/A ANDERSON DAIRY SYSTEMS,
PLAINTIFF-APPELLANT-CROSS-
RESPONDENT,
V.
DALE PETERSON,
DEFENDANT-RESPONDENT-CROSS-
APPELLANT.
APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Barron County:   EDWARD R. BRUNNER, Judge.   Affirmed.
Before Cane, C.J., Myse, P.J., and Hoover, J.
PER CURIAM.    Erland Anderson, d/b/a Anderson Dairy Systems,
appeals and Dale Peterson cross-appeals a judgment awarding Peterson $150,000
for  Anderson’s  negligent  misrepresentations  regarding  a  Bou-Matic  milking
system, minus $12,768 Peterson owed on the open account.   Anderson argues that:
(1)  Peterson  should  not  have  been  allowed  to  amend  his  pleadings  to  allege




No(s). 98-2903
negligent  misrepresentation;                                                               (2)  the  trial  court  should  have  granted  summary
judgment on the misrepresentation claims because the representations constituted
Anderson’s opinion, facts not yet in existence and “puffery,” and are barred by the
economic loss doctrine; (3) Anderson should be granted a new trial because the
trial court erroneously allowed the testimony of Peterson’s expert witness and a
rebuttal  witness  and                                                                      (4)  the  court  should  have  dismissed  the  negligent
misrepresentation claim for lack of proof.   Peterson argues that (1) the court erred
when it overturned the jury verdict and awarded damages on the open account;
(2) the court should not have granted summary judgment striking his rescission
and  deceptive  advertising  claims;  and  (3)  the  court  erred  when  it  refused  to
instruct the jury that time was of the essence in this contract.   We reject all of these
arguments and affirm the judgment.
The  trial  court  properly exercised  its  discretion  when  it  allowed
Peterson to amend his pleadings to allege negligent misrepresentation.   See John
v. John, 153 Wis.2d 343, 365, 450 N.W.2d 795, 804 (Ct. App. 1989).   Peterson’s
counsel requested to amend the pleadings as a result of materials he received from
Bou-Matic in discovery as well as Anderson’s deposition.   The court granted a
ninety-day continuance to allow additional time for trial preparation.   Anderson
has identified no specific prejudice that arose from the amendment.   We conclude
that the trial court reasonably balanced the parties’ competing interests when it
allowed the amendment and postponed the trial.
The  trial  court  properly  refused  to  grant  summary  judgment
dismissing  the  negligent  misrepresentation  claims.    Anderson  argues  that  his
representations are not actionable because they are only his opinions, not based on
present or preexisting facts, and constitute only puffery, an exaggeration made by
a seller, the truth or falsity of which cannot be precisely determined.   See Gardner
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No(s). 98-2903
v. Gardner, 190 Wis.2d 216, 244, 527 N.W.2d 701, 710 (Ct. App. 1994); U.S. Oil
v. Midwest Auto Servs.,  150 Wis.2d  80,  87,  440 N.W.2d  825,  827  (Ct. App.
1989); Loula v. Snap-On Tools Corp., 175 Wis.2d 50, 54, 498 N.W.2d 866, 868
(Ct. App. 1993).   To be entitled to summary judgment, Anderson had to establish
that there were no genuine issues of material fact and that he was entitled to
judgment on these issues as a matter of law.   See Green Spring Farms v. Kersten,
136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).
Anderson’s own recitation of facts in his argument for summary
judgment establishes disputes of material fact.   The parties presented conflicting
evidence  whether  the  milking  system  was  inoperable  and  whether  Anderson
misrepresented his own training and experience.   The Bou-Matic computerized
milking system’s ability to identify individual cows, isolate sick cows, maintain
reproduction and breeding records and eliminate the need for other record keeping
systems  arguably constituted  false  representations  of  present  facts  rather  than
forecasts  of  future  events  or  puffery.    The  evidence  presented  at  summary
judgment did not conclusively establish whether specific promises were made
regarding the completion date or who bore the blame for the failure to meet the
deadline.1
1    Anderson incorrectly argues that the statute of frauds, § 402.201(1), STATS., requires
such a commitment to be inviting to be enforceable.   The statute of frauds requires some writing
sufficient to indicate that a contract for sale has been made between the parties.   The writing is
not insufficient because it omits a term agreed upon.  All that is required is that the writing afford
a basis for believing that the offered oral evidence rests on a real transaction.   See First Bank v.
H.K.A. Enterprises Inc., 183 Wis.2d 418, 422-23, 515 N.W.2d 343, 345 (Ct. App. 1994).   The
only three definite and invariable requirements as to the memorandum are that it must evidence a
contract for the sale of goods, it must be “signed” a word which includes any authentication
which identifies the party to be charged, and it must specify a quantity.   Id.   The omission of a
written  completion  deadline  does  not  render  the  oral  agreement  unenforceable  under
§ 402.201(1), STATS.
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No(s). 98-2903
Anderson’s argument that the economic loss doctrine bars recovery
was not adequately presented to the trial court and will not be addressed on appeal.
Whether the economic loss doctrine should apply to misrepresentation claims and
whether it applies to an installer who has a separate warranty from that granted by
the manufacturer of the goods were not well developed in the trial court.   The
evidence did not focus on important considerations such as whether the Bou-Matic
system damaged other property, and the jury made no findings on that important
issue.   See Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis.2d
431, 437-38, 444 N.W.2d 743, 747 (Ct. App. 1989).   The factual basis for deciding
the legal issues was not adequately presented at the summary judgment stage and
the jury was never asked to resolve important factual disputes upon which our
analysis  must  rest.    Therefore,  we  conclude  that  the  issue  was  inadequately
preserved for appeal.
Anderson argues that he is entitled to a new trial based on errors in
the trial or in the interest of justice based on the trial court’s decisions allowing
two of Peterson’s witnesses to testify.   Dr. Michael Behr, Peterson’s economic
expert, testified regarding Peterson’s lost income that he attributes to failures of
the Bou-Matic milking system.   Anderson argues that Behr’s testimony and report
included losses from “phantom cows,” and that he was erroneously permitted to
present testimony regarding milk production losses as well as capital loss based on
his claim that Peterson was unable to replace cows over a three-year period.   The
accuracy of Behr’s testimony goes to its weight, not its admissibility.   See Rollie
Johnson Plumbing & Heating Serv. v. State, 70 Wis.2d 787, 796, 235 N.W.2d
528, 533 (1975).   The trial court allowed the parties to argue in support of or in
opposition to the opinions of both sides’ experts.   Anderson cross-examined Behr
and argued that his witnesses were more credible and accurate.   The trial court
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No(s). 98-2903
properly allowed the jury to determine Behr’s credibility.   In fact, the jury returned
a verdict awarding Anderson much less than Behr’s calculations.
Anderson also argues that the court should not have allowed the
“expert testimony” of Dennis Neuman, a dairy farmer who testified regarding
problems with his Bou-Matic milking system, which Anderson did not install.
Anderson argues that Neuman was not disclosed as an expert and his lay opinion
was not helpful in determining any issue of fact.   Neuman testified regarding cow
comfort problems and injuries his cows suffered from the exit reel and curb on the
system.   Neuman’s non-expert observations regarding the effect the system had on
his cows reasonably related to whether Peterson’s losses could be attributed to the
milking system rather than poor farming practices as alleged by Anderson.   The
trial court properly exercised its discretion when it concluded that this probative
value was not substantially outweighed by any danger of unfair prejudice.   See
§ 904.03, STATS.
Anderson argues that the trial court should have granted his motion
to dismiss at the close of Peterson’s case for lack of evidence.   His argument is
partially based on the  erroneous statement that this court should construe the
evidence in the light most favorable to the appellant.   Before taking a case from
the jury, the court must construe the evidence in the light most favorable to the
party against whom dismissal is sought.   See Wisconsin Natural Gas Co. v. Ford,
Bacon & Davis Const. Corp., 96 Wis.2d 314, 336, 291 N.W.2d 825, 836 (1980).
Peterson’s agricultural engineering expert testified to vacuum leaks, problems with
the  exit  reel  and  sequence  gates,  and  disputed  Anderson’s  representations
regarding  cow  indexing.    His  testimony,  in  combination  with  Peterson’s  and
veterinary evidence regarding the cows’ health and milk production allowed a
reasonable inference that Anderson’s misrepresentations caused Peterson damage.
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No(s). 98-2903
In his cross-appeal, Peterson challenges the trial court’s decision to
change the verdict to award Anderson $12,768 on an open account.   The $148,000
purchase price for the milking system was added to Peterson’s open account.   He
did not complete all of the payments on that account.   The jury separately awarded
Peterson  $150,000 for damages incurred due to the milking system’s failure to
perform as represented.   Any damages Peterson suffered should be included in that
award.   The record discloses no basis for Peterson’s failure to complete payment
on the open account for all of the goods and services he received.   There is no
credible evidence to support the jury’s finding that Peterson owed nothing on the
open account.   See Foseid v. State Bank of Cross Plains, 197 Wis.2d 772, 787,
541 N.W.2d 203, 209 (Ct. App. 1995).
Peterson next argues that the trial court erred when it failed to allow
him to pursue claims for rescission, intentional fraud and deceptive advertising.
The  trial  court  correctly  concluded  that  there  is  no  basis  for  rescinding  the
contract.2   Peterson did not reject the goods within a reasonable time after their
delivery and did not notify Anderson or Bou-Matic of his election to rescind until
that claim was raised in the pleadings.   This does not constitute timely rejection of
goods  or  seasonable  notification  to  the  seller  under  §§ 402.602  and  402.608,
STATS.    Peterson  continued  to  use  the  milking  parlor  from  March                       1995  to
December 1997, when he first claimed a right of rescission.   A contract may only
be rescinded when a party has breached the contract in a substantial manner so
serious as to destroy its essential objects or purpose.   See Appleton State Bank v.
2                                                                                               Peterson  acknowledges  that  he  was  required  at  some  point  to  choose  between
affirming the contract and seeking damages or rescinding the contract.   See Baumgarten v.
Bubolz, 104 Wis.2d 210, 216, 311 N.W.2d 230, 233 (Ct. App. 1981).   He does not indicate when
he intended to make that choice.
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No(s). 98-2903
Lee, 33 Wis.2d 690, 692-93, 148 N.W.2d 1, 2 (1967).   Peterson’s continued use of
the system demonstrates that the flaws are not so serious as to destroy the essential
object or purpose of the sales contract.
Peterson’s argument that the trial court improperly dismissed his
deceptive advertising claim was not properly preserved for appeal.    Peterson’s
recovery on the negligent misrepresentation claim renders moot any arguments he
has regarding other theories for recovery except where other remedies are allowed.
The deceptive advertising claim differs from the other causes of action in that it
allows an award for actual attorney fees.   When the trial court asked Peterson’s
counsel to explain the basis for the deceptive advertising claim which appeared to
present the same issues as the misrepresentation claim, counsel responded  “the
remedy, I think is the same, but they are somewhat different claims.”   Based upon
counsel’s statement that the remedies are the same, the trial court reasonably chose
to limit the numerous theories Peterson sought to present for recovery of the same
damages based on the same proofs.   We view counsel’s assertion that the remedies
would  be  the  same  as invited error  that cannot be  reviewed on  appeal.    See
Richards v. Land Star Group, 224 Wis.2d 829, 842-43, 593 N.W.2d 103, 109 (Ct.
App. 1999).
Finally, Peterson argues that the trial court erroneously refused to
instruct the jury that time was of the essence in the written contract.   The record
contains no rulings by the trial court with respect to the jury instructions.   We
cannot  review  the  trial  court’s  discretionary  decision  without  a  full  record
explaining its decision.   In addition, Peterson’s argument is based on the false
assertion that time is made of the essence when the contract provides that payment
is not due until completion.   Time is not of the essence in a contract unless it is
clear that the parties intended to make it so.   See Appleton State Bank v. Lee, 33
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No(s). 98-2903
Wis.2d at 693, 148 N.W.2d at 3.   The record before this court does not support
instructing the jury that time was of the essence.
By the Court.—Judgment affirmed.   No costs on appeal.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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