113 Mo. App. 550 | Mo. Ct. App. | 1905
— Action upon an alleged warranty of a Hereford bull sold by defendant to plaintiff. The
The contract between the parties involved in the controversy was made in the manner following: Plaintiff, a cattle breeder and raiser doing business in Nebraska, wrote defendants — engaged in like business in Indiana — upon the subject of purchasing a Hereford bull to be used in breeding. Defendants answered by letter under date of July 17, 1899, offering for sale the animal afterwards purchased, and describing him in this language: “Almont will weigh about 2,400 lbs., is a rich ■dark red, a very little white on top the neck, pure white face, low down long body, straight top and bottom lines, smooth hips, broad and deep in the twist, good in rear and fore flanks, good head with slightly drooping horns, a long silky curly coat, rather extraordinary back and loin, a very quick server and sure getter . . . We have retained this bull and used him extensively in our herd and are still using him. We have a lot of his get ... We have never before offered this bull for sale, but we have a lot of his get and have a half brother to him. Price, $1,000.. Now, if you want a herd bull that is as good as the very best, large and quality from end to end, whose breeding is as good as any contained in the herd books, and you can see a lot of his get and judge of their quality for yourself, you have an opportunity that you will seldom get. He is a better bull than either Wild Tom’ or ‘Salisbury.’ ”
Shortly after the receipt of this letter, plaintiff went to defendants’ place in Indiana to inspect the bull, arriving there on the afternoon of August 9,1899. On the eleventh the sale was consummated at the price fixed in'
One of the defendants testified: “We were aware that he wanted a bnll for the head of his herd. We wanted to sell him.- We knew Mr. Young was anxious to get a bull to put at the head of his herd ... I talked to Mr. Young about the bull. I told him he was a good breeder and a good server. I told him he was all right in every way as to being a breeding bull and as to pedigree and everything. I said he was ail right in every way. I told him that he was sound and was suitable to place at the head of any bunch of Herefords in the country.”
The other defendant said: “I knew Mr. Young
Plaintiff paid the purchase price and took the bull to his farm in Nebraska. On the trip the animal met with some rough treatment in the switching of the car in which he rode and appeared somewhat used up. After giving him sufficient time to rest, plaintiff endeavored to use him but found him very slow and unwilling. He was worthless for breeding, steadily declined in health and died November 8. A postmortem examination disclosed that his death resulted from tuberculosis of the bowels, and the evidence is convincing that he was infected with this disease at the time of the sale to the extent of making him valueless as a breeder.
The intention of defendants to warrant the soundness of the animal for the purpose of inducing the purchase, and the reliance of plaintiff upon the representations made to that end, are sufficient to constitute an express warranty without the use of formal words. [Carter v. Black, 46 Mo. 384; Danforth v. Crookshanks, 68 Mo. App. 311; Anthony v. Potts, 63 Mo. App. 517; Ransberger v. Ing, 55 Mo. App, l. c. 624; Lindsay v. Davis, 30 Mo. 406.] These facts may be inferred from the nature of the representations made in connection with the circumstances under which the parties dealt. The facts from which an express agreement to warrant should be inferred are .the following:
Plaintiff disclosed the special use for which he intended the animal. Defendant represented his suita
The claims of error in the action of the trial court in giving instructions numbers one and two on behalf of plaintiff appear to be based upon the idea that the court in effect assumed as proven the fact of warranty, and it is urged that as the contract being in parol essentially rests upon intention it is a fact the existence of which is always a question for the jury. The instructions as framed are free from the criticisms offered even under defendants’ conception of the law, with which we do not agree. The office of the jury is to weigh evidence and to decide issues of fact about which reasonable minds might differ; but when an essential fact must be deduced from others, and the basic facts are admitted, and the inference to be drawn therefrom certain and indisputable, the jury has no function to perform, there being nothing for it to act upon. Burdick on Sales, sec. 217; Mechem on Sales, sec. 1244; 2 Benjamin on Sales (7 Ed.), p. 665. When the terms of a contract are definitely known, whether it be in writing or verbal, its interpretation is a matter of law for the court, not a question of fact for the jury. All the facts necessary to constitute an express contract to warrant being admitted by defendants, they cannot, by injecting into the case their unexpressed mental reservations, make an issue of fact. Knowing that the bull was valuable to plaintiff only as a breeder, their positive admitted assurances that he was sound and a good breeder and server cannot be considered as merely commendatory, but must be taken as words of warranty intended, when uttered to be so accepted; and the failure bf the animal to
Upon the principle that plaintiff should be made whole, it also was proper to direct the allowance of interest and the repayment of expenses incurred in shipping the bull, and for medical treatment employed in an effort to restore the health of the animah [Galbreath v. Carnes, 91 Mo. App. 515.] Interest from the date of demand is treated in cases of this character as
No error appears in tbe record. Tbe judgment is affirmed.