176 Mo. App. 100 | Mo. Ct. App. | 1913
Rube, a big Kentucky jackass, is the subject of this action. Rube died before the litigation commenced and knows nothing of the trouble he left behind. An alleged warranty concerning what he was and what he was capable of doing at the time he was sold to defendant by the plaintiff is presented for review.
The petition counts on a note for $1000, given by defendant to plaintiff in consideration of two jacks, Rube and Frank, on which note with interest, after
Defendant in his answer admitted buying the jacks and executing the note, but pleaded:
“That said jacks were purchased to be used íot breeding purposes and to be stood by defendant at his farm in this county and to be let to service of mares on custom for profit, which fact was well known to plaintiff at the time; that plaintiff, well knowing the purpose for which defendant wanted said jacks, and in order to induce him to make said purchase, represented to defendant that said jacks were sound and healthy; and the larger jack, Rube, was a good breeder and sure foal getter, and defendant, relying on plaintiff’s said representations, was induced thereby to purchase said jacks and execute the note sued on; that the jack, Rube, was unsound and unhealthy, was not a good breeder and was not a sure foal getter; that he was infected by a secret malady and an undeveloped latent disease at the time, .and shortly thereafter his legs and body broke out in enormous sores, his hair came off in large quantities, he refused to eat and continued to decline from the date of his purchase until the month of October, 1910, when he died. That the mares served by him failed to get with foal, and he was worthless for the purpose for which he was. purchased, or for any other purpose. That the relative value of the jack, Frank, does not exceed $500 on the basis of the agreed value of $1000 for the two jacks. Wherefore, defendant says that after deducting the credits endorsed on said note, he is indebted to plaintiff in the sum of $67.55.”
The reply is not set out in the abstract, but it is stated that the reply denied .each and every allegation as to failure of consideration.
The jury returned a verdict for plaintiff for $67.55, and the case is here on his appeal.
Plaintiff as a witness did not deny this. Indeed, there is at no place in the record a denial that plaintiff made the warranty set up. in defendant’s answer. Plaintiff proceeded at the trial on the theory of admitting the making of the oral warranty but denying that a breach had occurred. Plaintiff and his witnesses testified that the jack at the time of the sale and at different times during the year 1909 after defendant bought him was fat—in good flesh—in good condition —in good life—quick to serve—-appeared healthy and had no scars or sores.
As appellant’s assignments of error do not require a detailed review of the evidence introduced at the trial, it is enough to say that as to the jack’s condition at the time of the sale and for some months thereafter the evidence is in irreconcilable conflict. The purchase occurred at plaintiff’s farm in Arkansas on March 16, 1909, and the jack died at defendant’s farm in Missouri in October, 1910.
As it will be necessary to refer to the instructions from time to time throughout the opinion, they are here set out.
The court, at plaintiff’s request, gave this instruction :
“1. The note sued on in this case was given as the purchase price of two jacks sold by the plaintiff to the defendant, and defendant seeks to avoid the payment of the balance due on the note on the ground that one of the jacks was diseased at the time of the sale and finally died of such disease. You are there
The court, at defendant’s request, gave these instructions :
“A. The court instructs the jury that one who sells personal property to be used for a particular purpose, impliedly warrants that it is reasonably suitable for the use and purpose for which it is sold and purchased ; therefore, if the jury believe and find from the evidence in this case, that the note sued on was given for the purchase of two jacks, to be used and stood for breeding purposes and to be let to service to mares on custom, and that the use and purpose for which defendant purchased said jacks was known to plaintiff when selling the same, and that the jack, Rube, was worthless for the purpose for which he was sold, and was of no value for any other purpose, then there was a partial failure of consideration for said note, leaving the jack, Frank, as the only consideration therefor, arid your verdict should be in favor of the plaintiff for the balance you may find due on the jack, Frank, after deducting the credits endorsed on said note.
“B. The court instructs the jury that if you find and believe from the evidence that the note sued on was given for the purchase price of two jacks, and that the plaintiff then and there represented and stated that the jack, Rube, was a great breeder and a sure foal getter, sound and healthy, and that said jack was sold and purchased for breeding purposes for hire; and if you further find and believe from the testimony that the said jack Rube, was not a great breeder or not a sure foal getter, or that he was not sound and healthy, and that by reason of any or all of said facts, if you
It appears.by .appellant’s motion for a new trial that another instruction, “C,” was given for the defendant, but it is not set out in this record. Since appellant relies almost entirely on error in the instructions for reversal, he should have brought all the instructions to this court. [Guinn v. Boas, 31 Mo. App. l. c. 134.] The rule was long ago announced that “where a record discloses that other instructions were given which are not stated, we cannot reverse for the giving of instructions which do not involve some substantial error prejudicial to the appellant.’-’ [Haegele v. Western Stove Co., 29 Mo. App. l. c. 494; Harris v. Powell, 56 Mo. App. l. c. 26.]
Appellant contends that since respondent defended by alleging an express warranty in his answer, it was error to instruct on an implied warranty as was done by instruction “A.”
The plaintiff, having to all intents and purposes admitted that he made the warranty alleged in defendant’s answer, to-wit, that the jack was sound and healthy, a good breeder and sure foal getter, could not complain of an instruction on such warranty, for example, an instruction along the line, followed-in instruction “B.” The undisputed evidence is that defendant bought the jack to use in the breeding business, and that plaintiff knew this fact, and that a jack worthless for breeding purposes is entirely worthless for any purpose. It is manifest that the express warranty alleged and proved was no greater than the
Appellant contends that defendant’s instructions do not conform to the pleadings; that defendant’s answer went into detail concerning an alleged disease, that the case was tried on the theory that the jack was so diseased and died therefrom, that instruction “A” entirely ignores any disease and that instruction “ B ” merely mentions it. The gist of the warranty alleged in defendant’s answer is that the jack was sound and healthy, a good breeder and sure foal getter. In pleading the breach, it was alleged that the jack was not a good breeder and sure foal getter, and was unsound and unhealthy, going on to set out the details concerning the alleged unhealthy condition—merely pleading evidence. The evidence before the jury was squarely in conflict as to the healthy or unhealthy condition of the jack at the time of the sale. Does appellant ask us to hold that the trial court should have lifted bodily from the answer the evidentiary facts pleaded—facts which were disputed—and placed them in the instruction and told the jury that if those facts were established to their satisfaction, the animal was unhealthy? The answer to this contention is that it is error in instructions to assume facts which are in issue. [Caldwell v. Stephens, 57 Mo. 589.]
As another branch of this contention it is pointed out that the answer used the term “good breeder,” whereas the term “great breeder” is used in instruction “B.” The warranty, as pleaded, was that the
It is insisted that defendant’s instruction “B” is in conflict with plaintiff’s instruction No. 1. It. is obvious that the latter does not contain all the elements which defendant was entitled to have submitted to the jury. The warranty set up in the answer was double— (1) that the jack was sound and healthy; (2) that the jack was a good breeder and sure foal getter. Merely because plaintiff was successful in having’ the court give an instruction which contained but half the alleged warranty should afford no ground for a contention in this court that the trial court, by giving .an instruction at defendant’s request which did contain both branches of the alleged warranty—that is, which covered the whole case—was guilty of “giving con
Now it is contended that instruction “B” is not a correct instruction but is erroneous in that it did not fix. any time at which or within which the alleged warranty must be found to be operative. We do not believe the jury was misled in this particular. The answer had stated that the warranty was breached at
The time was clearly fixed in the instructions given as of the date of the sale and the breach went to the latent and hidden disease. Defendant charged there was a breach of the warranty that the jack was sound and healthy owing to the diseased condition, and that the jack was not a good breeder and sure foal getter because of the disease. The definition of 1 ‘ disease, ’ ’ as given in Cyc. (Vol. 14, p. 385) is: “Any derangement of the functions or alteration .of the structure of the animal organs; a morbid condition, resulting from some functional disturbance or failure of physical condition which tends to undermine the constitution.”
The evidence is undisputed that at the time defendant purchaséd the jack there was no apparent disease or symptoms from which the defendant should have known of any latent or hidden disease. Where an express warranty as to soundness is made and a breach is alleged because of a latent defect or a latent unsoundness, it becomes a question for the jury to determine from the evidence whether the unsoundness or unhealthy condition existed at the time of the sale. In determining this question they will of course consider
In determining questions as to soundness on a certain date, where the proof is that prior to 'that date the animal was sound and subsequent to that date he was unsound, the only way to proceed is for the jury from these facts to draw an inference concerning the condition on the date of the sale. Such a fact cannot, in a case like the present, be positively and actually known. A finding must necessarily be based on inference; and if the evidence that the jack was healthy prior to a certain date is true, and it should be shown that he was not a great breeder and sure foal getter immediately after the sale on said date, it would certainly not be an unwarranted inference that this changed condition was brought about by disease, because any animal that is shown to be capable of procreating its species necessarily continues capable until' there is some derangement of the functions or alteration of the structure of the animal organs, which is disease. The testimony of the defendant that the jack was thin on the day he went to get it, and the explanation made by plaintiff’s agent, the keeper, that the jack was thin because the timothy hay had burned and that it did not like to eat prairie hay, followed by the' testimony of defendant that he procured timothy hay for the jack after taking it home and that it refused to eat the same and continued to lose in weight, would
Appellant complains of error in the admission of testimony. Defendant’s witness, Jones, had stated that he commenced working for defendant in March, 1910. He was then asked this question: “Try and describe the appearance of that jack as to whether he appeared healthy and sound or diseased at the time you first knew him in March, 1910? ’ ’ He answered: 11 "When 1 first commenced working there he had sores from his knee down.” No objection was made. Then the witness was told to “describe these sores to the jury*” whereupon plaintiff objected “to any sores that come there a year after the jack was bought” which was overruled and plaintiff excepted. The witness answered: “Those sores were there when 1 commenced working there and they became worse during the season.” The defendant, as a witness, had previously testified fully as to the sores, covering the time witness Jones testified to, and no objection had been made by the plaintiff, so that Jones’ testimony, at which the objection was aimed, was, at most, cumulative, and even though its reception could be said to be erroneous, it would not constitute reversible error. [Powers v. Union Ry. Co., 60 Mo. App. l. c. 482.]
Appellant presses another point. Defendant’s witness Jones was asked on direct examination: “Do you know of any veterinary surgeon who treated the jack during that time?” Plaintiff objected, stating grounds, and the court overruled the objection and plaintiff excepted. However, the contention falls down by reason of the fact that the witness did not answer the question and no other attempt was made to elicit the information called for by the question objected to.
Finding no reversible error, the judgment is affirmed.