Young v. Vannatta

JOHNSON, J. — Action upon an alleged warranty of a Hereford bull sold by defendant to plaintiff. The — 556 — petition contained three counts, the causes of the action pleaded being founded respectively upon express warranty, implied warranty and false and fraudulent representations. At the trial the last two mentioned causes were voluntarily abandoned and the cause went to the jury upon the issue of an express warranty. Plaintiff recovered judgment and defendants appealed. 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' — 557 — the letter. Plaintiff’s inspection before closing the trade was most thorough. In appearance the animal seemed' to merit the high praise bestowed upon him, and there was nothing to indicate to the eye of experience the presence of a secret malady, nor that the bull was nota “good server and breeder.” Defendants were informed that plaintiff desired the bull for the exclusive use of breeding. Plaintiff testified he told them that he needed a bull to head his herd — to do the main work of serving his cows — and defendants assured him that “this bull is just what you want;” that, he is a sure breeder and very active; and that “when we have a cow hard to get in calf we always put her to Almont.” When asked about his soundness, defendants asserted, “he is all right in every particular; if he was not we would not sell him to you.” Plaintiff said he bought Almont because defendants told him that “he was suitable for me and the bull I wanted and needed, and that he would be a good bull for me. I relied solely on what they wrote and told me, except his general appearance..... I told Mr. VanNatta I didn’t know anything about this bull and you have bred him and raised him and have been with him every day and know all about him . . .. I told him that I would depend solely npon what he said about the bull.” 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 — 558 — wanted a bull to put at the head of a Hereford herd. I had written Mr. Young full about this bull (the letter above noted) ... I represented just what I wrote in the letter. I thought this bull was good enough to head anybody’s herd and I did think so ... I told Mr. Young that Almont was a, better bull than ‘Wild Tom’ or ‘Salisbury,’ and I say it yet . . . If he hadn’t had tuberculosis I would still say he was a good bull.” 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 — 559 — bility for that purpose, intending thereby to’ induce the sale. The animal apparently was sound and in every way as represented. Plaintiff was compelled to and did rely upon the representations made with respect to defects not discoverable upon inspection. It was proper to refuse defendants ’ request for a peremptory instruction. 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 — 560 — meet the requirements of the contract thus established, either in point of health or in breeding and serving, raised a cause of action in plaintiff’s favor. The court would not have committed error had it in the instructions given treated the agreement to warrant as an admitted fact. This conclusion disposes of every point made upon this branch of the case. The court admitted evidence offered by plaintiff fixing the market value of the bull, had it been in the condition as warranted, at a sum exceeding the purchase price paid, and the jury was directed if they found for plaintiff “to allow him as damages the difference, if any, between the value of the bull as it would have been had said bull been of the kind and character as warranted by defendants, or either of them (if you find they did warrant it as defined in another instruction) and its actual value, if any, as shown by the evidence at the time and place of sale.” The rule followed is supported by the great weight of authority. [Narr v. Norman — Mo. App. —; Chandelor v. Lapus, Smith’s Leading Cases, 1, p. 365; Reggio v. Braggiotto, 7 Cush. (Mass.) 169; Brown v. Weldon, 99 Mo. l. c. 569; Layson v. Wilson, 37 Mo. App. 636; Sutherland on Damages, sec. 670; Benjamin on Sales (7 Ed.), part 2, p. 962.] But defendants say the recovery should be limited to the purchase price paid. We do not think so. Plaintiff should be compensated for the actual loss sustained through defendant’s wrongful breach of contract. The bargain he made, but failed to realize, is a part of his actual loss, for which he must be reimbursed. 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 — 561 — a part of tbe actual damage suffered. As observed by one court “to afford tbe party just compensation, since bis damages accrued at a definite time, be must be allowed interest, else tbe longer tbe delay tbe more inadequate bis compensation would prove to be.” [Harvester Works v. Bennaltie, 29 Minn. 373; Lachner v. Express Co. 72 Mo. App. 13; Sutherland on Damages, sec. 671; Plow Works v. Scott & Co., 90 Wis. 590; Trimble v. Railway, 180 Mo. 587; Padley v. Gatterlin, 64 Mo. App. 629; Goodman v. Railway, 71 Mo. App. 464.] We are of tbe opinion that plaintiff is entitled to sucb interest as a matter of right. No error appears in tbe record. Tbe judgment is affirmed. All concur.