Neal KASTE and Nancy Kaste, dba Hightide Holsteins, Plaintiffs-Respondents, v. LAND O'LAKES PURINA FEED, LLC, a foreign limited liability company, dba Land O'Lakes Feed, Defendant-Appellant., 284 Ore. App. 233

Summary

HOLDINGS: [1]-A feed seller was not entitled to a directed verdict on contract claims alleging that inferior and harmful feed had sickened the buyers' dairy cows because a provision stating that the seller would not be liable for consequential damages did not prevent the buyers from recovering the purchase price of the feed and, even if the complaint insufficiently alleged damages apart from consequential damages, such a defect was curable by amendment under Or. R. Civ. P. 23(B) to conform to the evidence; [2]-Because the provision limiting damages was ambiguous as to whether it applied to tort claims, it did not bar or limit recovery on tort claims; [3]-The buyers were not required to make an election of remedies because the contract and tort remedies were not inconsistent and the measures of damages did not overlap; [4]-Allowing leave to amend to request attorney fees was not error.