150 P. 956 | Utah | 1915
Lead Opinion
The plaintiff sued the defendants to recover the value of four horses and damages for an injury to a fifth horse. It is, in substance, alleged in the complaint that the death of the four horses and the injury to the fifth were caused through the wrongful acts of the defendants, as will hereinafter appear. Defendants’ answer was, in effect, a general denial.
There is a preliminary question arising upon a motion of the defendants to be disposed of first. After the ease had been pending for about three years the defendants moved to dismiss the action, “for the reason that the plaintiff herein has failed and neglected to prosecute said action with reasonable diligence.” While the record is not clear what ruling the court made on the motion, yet, in view that
Proceeding now to the merits: At the trial the plaintiff, in substance, proved that in March, 1910, he was engaged in the livery business at Murray City, Utah, and at that time was the owner of four horses, which were particularly described and their value testified to; that at said time there
“I took a can and went over to Mr. Howe and asked him for a gallon of raw linseed oil. * * * He went and took the can and went back to the barrel and drawed a gallon from it. Q. And you asked him for raw linseed oil? A. Yes, sir. * * * Q. And did he deliver to you the oil? A. Yqs, sir. * * * Q. Did he know what you wanted when you first appeared there ? A. I told him I wanted it to feed to my horses. Q. Did you say anything to Mr. Howe about Mr. Wright [the plaintiff] having sent you for the oil? A. No, sir.”
The witness then took the oil he obtained from Mr. Howe, one of the defendants, to the livery barn, and he- and Mr. Wright, the plaintiff, administered the same to four of the horses. Mr. Wright then took the can in which the oil was brought by the witness Dalton to defendants’ place of business and got another gallon of oil. The witness and Mr. Wright then gave a quart of the oil to the fifth horse. Mr. Dalton further testified:
‘ ‘ Then I started to take him [the fifth horse] back, and got to the door, when I seen all the rest of them foaming at the mouth; and I called Mr. Wright and told him they were sick, and he came to see them. And he ran right for the veterinary then.”
The witness also said that the horse that was given some of the oil brought by Mr. Wright also got sick. He further said:
“The bay mare died that night, and the others lingered a day or two, and then four in all died. ’ ’
It is not necessary to set forth defendants’ evidence, since we rest the decision entirely upon plaintiff’s evidence;
The case was tried to a jury, who returned a verdict for the plaintiff, and the defendants appeal.
The court charged the jury as follows;
“The court instructs you that any affirmation of fact respecting the quality of goods sold, made by the seller during the negotiations for the sale, if received and relied upon by the buyer, is an express warranty by the seller as to such quality of said goods.”
Exception was taken to this instruction, and the giving of it is assigned as error. We remark that the charge is not a model one in a case like the one at bar. For reasons hereinafter appearing, we do not think that the defendants
Let ns examine now, the real facts for a moment. • The witness Dalton went to the defendants’ place of business to purchase raw linseed oil to be used for a particular purpose, which he then disclosed to one of the defendants. If the defendant had sold or delivered to Mr. Dalton raw linseed oil of an inferior grade or quality, the question of
“It is not pretended, that the seller warranted the article sold to he such a substance as would accomplish the purpose desired by the buyer; but it is certainly true that he sold and delivered it as and for ‘paris green,’ that it was for this the parties mutually contracted, and that the delivery of something else was not a compliance with the contract, it not being shown that the purchaser bought the substance delivered, taking upon himself not only the risk of quality, which is the matter to which warranty applies, but also of kind. It is evident that the buyer relied on and trusted.- the representation of the seller. If the article delivered had been ‘paris green,’ but of an inferior quality, then the question would arise, the seller knowing for what purpose it was bought, whether there was an implied warranty in the sale of such an article, for such a known purpose, that the article delivered should be of a’ quality necessary to accomplish the purpose which a good quality of ‘paris green’ would accomplish in the matter in which the buyer intended to use it. That, however, is not this case. The appellant contracted to buy, and the appellee contracted*593 to sell and deliver, ‘paris green,’ and not some other substance; hut ‘chrome green,’ a substance not having the properties of ‘paris green,’ though resembling it in appearance, was delivered. In such cases, technically, no warranty arises, but there is an implied contract that the thing sold and delivered is of the kind which the parties contracted with reference to.”
The authorities cited in support of the Texas case are the following; Benjamin on Sales, section 600; Pollock’s Principles of Contracts, 465; Story on Contracts, 1079. See Benjamin on Sales (7th Ed.), p. 679, where the cases are collated. See, also 2 Mechem on Sales, section 1209, where the nature of such sales is discussed. As pointed out in the Texas case, if an article is requested by the purchaser which is to be used for a particular purpose which is made known to the seller, and the latter sells and delivers an entirely different article, and the purchaser is ignorant of the nature of the article, and accepts and uses it, and thus cannot return it when he discovers that he has received an article different in character from the one ordered, and is injured and damaged by its use, he may recover all damages that are directly caused by the use of the article delivered to him. The doctrine is illustrated in the Texas case where the purchaser called for “paris green” to be used as a poison to kill certain worms which were destroying the purchaser’s growing cotton crop. The seller, however, sold and delivered “chrome green,” which did not possess the properties of “paris green,” and hence did not kill the cotton worms, which succeeded in destroying the purchaser’s cotton crop. The court accordingly held that the purchaser could recover “the value of the crop as it stood just before it was destroyed by the worms, what the cost of the compound was, and the further cost of its preparation and application to the cotton, with interest on the money thus expended. ’ ’ See, also, Mechem on Sales, section 1824; Benjamin on Sales (7th Ed.) 963.
But it is contended that it was plaintiff’s duty to inspect, and that he was negligent in not inspecting the oil before administering the same to the horses. There is nothing in the evidence from which any negligence could be deduced. More
“If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security.”
In the case of French v. Vining, 102 Mass. 136, 3 Am. Rep. 440, Mr. Justice Ames, speaking for the court, in referring to circumstances somewhat like those in the case at bar, says:
“The buyer, has a right to suppose that the thing which he buys, under such circumstances, is what it appears to he, and such purchases are usually made with a reliance upon the supposed skill or actual knowledge of the vendor.”
In that ease the purchaser bought hay to feed a cow, upon which hay some dry poison had fallen, and which the seller thought he had removed from the hay, and sold it to the purchaser, who was ignorant of the fact, and who fed the hay to the cow, which died. The action was to recover the value of the cow, and in the course of the opinion the court made the foregoing observation. The purchaser recovered judgment in the court below for the value of the cow, and the judgment was affirmed on appeal. To the same effect are the cases of Provost v. Cook, 184 Mass. 315, 68 N. E. 336, and Coyle v. Baum, 3 Okl. 695, 41 Pac. 389.
The plaintiff in this case alleged and proved all the elements which, under the law, entitled him to recover, and hence there is nothing in the contention that the verdict of the jury and judgment are contrary to law and facts, nor is it of any importance, under the circumstances, that both parties assumed that the right of recovery depended on a warranty. Nor is there any merit in the contention that the court erred in charging the jury with regard to the measure of damages. The charge in that regard was in compliance with the law as indicated above. Nor did the court commit reversible error in refusing defendants’ requests to charge. While it is true,
The judgment therefore should be, and it accordingly is, affirmed, with costs.
Rehearing
ON APPLICATION FOR REHEARING.
A petition for a rehearing has been filed in which it is strenuously insisted that the decision is erroneous in the following particulars:
(1) It is contended that we erred in not reversing the judgment, for the reason that the trial court erred in not sustaining appellants’ motion to dismiss the complaint for failure to prosecute the action, and that we failed to pass or at least failed to sufficiently state our reasons in passing, upon that assignment in the original opinion. There is not the slightest merit to the contention. The case had been at issue about three years. In this state, if an action be determined
(2) It is next insisted that we erred in failing to hold that the trial court had erred in not sustaining appellants’ motion to strike certain allegations from the complaint. Counsel, in his original brief, remained absolutely silent upon that subject, and therefore, under the well-settled practice of this court, he had waived that assignment. That also must have been the view respondent’s counsel took of the matter, since he likewise said nothing in respect thereto in his brief. But, above and beyond all, the motion was entirely too sweeping, and it would have been error had the court sustained it.
(3) It is further contended that we erred in not holding
“Mr. Moffat: Now, if the court please, I desire to interpose a motion for a non-suit. (Motion for non-suit argued and submitted.)
" The Court: The motion may be denied. ’ ’
In the face of this record no comment seems necessary.
(4) Finally, it is insisted that there was not sufficient evidence to sustain the verdict upon the second cause of action. Here again counsel has failed to comply with the rule of this court in failing to specify in what particulars the evidence is insufficient. We cannot supply matters of that character. In considering the assignments in the original opinion we passed upon every one which, in'our judgment, was properly before us, or which possessed an}*- merit whatever, and in case of doubt, in every instance, gave the benefit of such doubt to the appellant. Now counsel files a petition for rehearing in which he complains that this court has not done what under the settled practice we were powerless to do.
The petition is denied.