The opinion of the court was delivered by: J. Leon Holmes United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Kym Manula and Lil' Outlaws Pony Camp, LLC, d/b/a Spraddle Creek Ranch, brought this action against Rick Wheat for breach of contract, unjust enrichment, fraud, deceit, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, and deceptive trade practices arising out of a sale of 30 horses. Following a twoday bench trial, this case is ripe for decision.
Kym Manula is the owner of Lil' Outlaws Pony Camp, LLC, which does business as Spraddle Creek Ranch. She is the sole member of the limited liability company. She has ridden horses for most of her life and has years of experience in working as an outfitter and in guiding trail rides.
In 2002, Manula purchased a ranch in Eagle County, Colorado, where she operated a horse and pony camp, primarily for children who had little or no experience with horses. In 2003, Manula purchased the Spraddle Creek Ranch, which operates on and leases land from a national forest. Spraddle Creek Ranch is a trail riding business approximately one mile from Vail, Colorado. It serves primarily "dudes," i.e., adults and children with little or no experience riding horses. Spraddle Creek Ranch offers trail rides of one hour, two hours, and three hours. The customers ride horses that are walking nose-to-tail in single file along a well-established trail in the national forest. The season for Spraddle Creek Ranch runs from May through September.
Rick Wheat is an experienced horseman who owns a ranch near Mt. Pleasant, Arkansas. Wheat has been a horseman for many years. He previously owned a business that produced rodeos, and he sold that business. He has owned and operated a trail riding business. He is a horse trainer who has trained horses and conducted clinics on training horses throughout the United States, in Canada, and in other countries. He has patented a device known as the Noavel Headstall, which he uses in training horses and which he sells through distributors. The Noavel Headstall is similar to a halter, but it can be used to create pressure on pressure points to teach the horse when he is behaving inappropriately. The Noavel Headstall has no bit.
During the first week of September 2003, Manula traveled with her ranch foreman, Trevor Schlegel, and a farrier, Gary Hoza, to Arkansas for the purpose of exploring whether she might buy horses from Wheat for use at Spraddle Creek Ranch. Hoza was not only a farrier but also a Noavel Headstall dealer. He had introduced Manula and Wheat to one another. Manula spent approximately three days in the area. Wheat had on his ranch a large number of horses, which he showed to Manula. He also showed her horses in other places. They rode some of the horses. Wheat gave demonstrations on his training methods using the Noavel Headstall.
By the conclusion of the visit, Manula and Wheat had reached an oral agreement. After Manula returned to Colorado, Wheat reduced the oral agreement to a written contract, signed it, and sent it to Manula, who also signed it. The written contract provided:
Rick Wheat will deliver 30 (Geldings) trail riding horses to Kym Manula on or before May 25th, 2004. Each of the horses will have:
A current negative coggins A Noavel brand on their right side A Noavel Headstall A rope halter Each horse will be wormed 4 times between Sept. 2003 to May 2004.
Each horse will be in excellent physical condition (each horse being provided with nutritious feed and hay from Sept. 2003 thru May 2004).
Each horse will be trained as trail horses using the Rick Wheat Training Method. (Kym, observed the training method during her visit to Rick's ranch Sept. 2 thru Sept. 5th).
The horses will be rode using a bit in their mouth, as well.
Rick agrees to come with the horses when they are delivered, to help Kym with her trail riding program. Rick agrees to provide Kym with 2 or 3 extra horses. Kym can eliminate any of the 2 or 3 horses she chooses. Rick wants Kym to sale [sic] the horses she eliminates and send him the money.
Kym Manula agrees to pay $1000.00 for each horse, for a total of $30,000.00. Kym Manula agrees to send a $100.00 deposit for each horse, for a total of $3,000.00. Kym Manula agrees to pay for the transportation of the 32 horses to Spraddle Creek Ranch in Vail, CO. Balance of $27,000.00 due on delivery of horses to Vail, CO. Signature Rick Wheat Date 9-11-2003
Rick Wheat Signature Kym Manula Date 9-26-03
Despite the fact that the oral agreement was reduced to a written contract, each side has urged that the agreement includes terms favorable to that side that are not in the written contract; and, conversely, each side denies that the agreement includes terms favorable to the other party that are not in the written contract. For example, in response to a complaint by Manula that the horses delivered to her were too young and immature to be ridden by inexperienced horsemen on trail rides, and in response to Manula's complaint that three of the horses delivered to her were stallions, Wheat contends that, when she was on his ranch in early September 2003, Manula, herself, selected the horses to be trained and delivered in May 2004, that she specifically selected two-year-old horses, and that she specifically selected the three stallions. Manula denies that she selected the horses that would be trained and delivered. According to her testimony, Wheat was to select the horses who would be most suitable to be ridden by "dudes" in a trail riding operation because he could view the performance of the horses during the training, cull out the ones that did not respond well in training, and replace them with horses that responded better to the training.
The written contract is consistent with Manula's testimony, not Wheat's. The contract was for "30 (Geldings) trail riding horses," not for 30 specific horses. Wheat is an experienced businessman and an experienced horseman. Manula is an able and intelligent businesswoman. If the agreement had been for 30 specific horses selected by Manula while she was in Arkansas in early September, Manula and Wheat would have prepared a list identifying the specific horses to be delivered the following May, both parties would have had a copy of the list, and the list would have been included in the written contract, so as to make sure that there would be no dispute as to whether the horses delivered in May 2004 were the ones selected by Manula in September 2003. Likewise, if Manula had specified that she wanted two-year-old horses, that specification would have been included in the written contract; and if Manula had selected any stallions to be included the written contract would have so stated instead of calling for delivery of 30 geldings.
Manula argues that the contract included a requirement that each of the horses be trained to pull a wagon. Wheat denies that the contract included that term. The written document does not include a requirement that each of the horses be trained to pull a wagon, so the written document on this issue supports Wheat's testimony, not Manula's. If it had been a term of the contract that each horse would be trained to pull a wagon, Manula would have insisted that that term be included in the written contract. Manula argues that the contract could be amended by an oral agreement of the parties, but the evidence did not show that the parties orally amended the contract after September 26, 2003, when Manula signed it, to include a requirement that all of the horses be trained to pull a wagon. There was evidence that while Manula was in Arkansas in early September 2003 Wheat explained his training process, which includes ...