Hygeia Dairy Co. v. Gonzalez

ON APPELLEE’S MOTION FOR REHEARING EN BANC

Opinion by:

TOM RICKHOFF, Justice.

Appellee’s motion for rehearing en banc is granted. We withdraw the panel opinion of September 23, 1998 and substitute this en banc opinion in its place.

In this action over the sale of a herd of dairy cattle, we find error in the trial court’s failure to instruct the jury on mitigation.

Hygeia Dairy Co. (“Hygeia”) sold 51 head of dairy cattle to Abelardo Gonzalez in April 1991; these cattle were incorporated into his existing herd. Gonzalez later bought some more cattle from another supplier. In 1993 and early 1994,…