48 Iowa 15 | Iowa | 1878
The defendant asked the court to instruct the jury as follows : “ If the jury find that the note (was) given in consideration for sheep, as claimed by the defendant, and that the sheep were affected with a disease known as scab, and that said disease is contagious, and you find further that the plaintiff knew said sheep were so diseased, then the selling of said
Other instructions asked by defendant, placing a like construction upon the statute, were qualified in a similar manner. In this action we think the court erred. The statute in question was intended, not for the protection of the individual purchaser only, but for the protection of the public. It was intended to arrest the spread of contagious diseases amongst sheep, by making it penal to traffic in sheep, knowing them to be affected with such disease. The public might be exposed to great loss from the removal of infected sheep along the highways, even when the sales are made to persons aware of such diseased condition. The statute suggests no qualification such as made by the court. It declares the selling or disposing of any sheep, knowing them to be affected with a contagious disease, to be a misdemeanor. The law will not, we think, lend its aid to the enforcement of such a contract, even when the purchaser has knowledge of the diseased condition of the sheep purchased. See Dillon & Palmer v. Allen, 46 Iowa, 299.
II. We think, however, that the modification of the instructions above referred to was error without prejudice. The jury returned the following special verdict:
2. At the time of the sale of said sheep, did the sheep have a contagious disease? Yes.
3. Bid the plaintiff know that they were so diseased at the time of the sale to defendant ? Yes.
5. Did defendant know when he bought the sheep that they were diseased with the scab, or any of them? Yes.
6. Did the plaintiff know at the time he sold the sheep to
The refusal to give this instruction is assigned as error. The abstract purports to set forth only a part of the testimony. The evidence set forth in the abstract showed that the sheep were all together, and were seen by defendant at the time the purchase was completed and the note in question was executed. The special findings also show that the defendant knew when he bought the sheep that they were diseased with the scab. As the defendant completed the purchase with knowledge of the diseased condition of the sheep, he was not damaged by the fact that when he first looked at the flock twenty-five or thirty diseased sheep were not with the flock. The foregoing considerations dispose of the alleged error in the instruction given by the court, and of the failure of the court to instruct more specifically upon the defense of fraud in the sale.
The record discloses no prejudicial error.
Affirmed.