Detjen v. Moerschel Brewing Company
| Citation | 138 S.W. 696,157 Mo.App. 614 |
| Parties | P. DETJEN, Respondent, v. MOERSCHEL BREWING COMPANY, Appellant |
| Decision Date | 12 June 1911 |
| Court | Court of Appeals of Kansas |
Appeal from Pettis Circuit Court.--Hon. Charles Hoffman, Judge.
Judgment affirmed.
Sangree & Bohling for appellant.
Orville M. Barnett for respondent.
This action is to recover damages for breach of warranty and for fraud practiced in the sale of a mule. Answer, a general denial. Plaintiff recovered a verdict and judgment in the circuit court and defendant appealed.
The sale of the mule was at a public auction conducted by defendant on its farm in Pettis county. The secretary of the defendant company, Mr. Urban, was present during the sale. The mule in question was small, poor, and afflicted with a disease of the kidneys, of which fact the evidence of plaintiff tends to show Mr. Urban had knowledge though he denies having had such knowledge at the time. The mule had been doing heavy work on the farm and its poor condition could be and was ascribed by defendant to overwork. The bidding on the animal was languid and stopped at seventy-five dollars, whereupon the auctioneer turned to Urban and inquired "What is the matter with this mule?" and received the reply, delivered in the hearing of the bidders, that the mule was "straight and all right." Bidding was resumed and increased to $ 122, at which price the sale was made to plaintiff. It appears that plaintiff relied on the statement that the mule was "straight and all right." He received and paid for the mule and shortly after the animal died of its disease which was not an obvious but a secret malady.
The demurrer to the evidence was properly overruled.
It is true, as argued by defendant, that a sound price does not imply a sound commodity and that under the rule of caveat emptor the buyer takes the risk of quality and condition unless he protects himself by a warranty or there has been a false representation fraudulently made by the seller (Lindsay v. Davis, 30 Mo. 406), and that mere praise of the subject of sale by the vendor will impose no obligation on him as a warrantor, nor will a warranty be implied. [Moore v. Koger, 113 Mo.App. 423, 87 S.W. 602.] But to constitute a warranty of quality or condition the law does not require that the agreement be in writing or that the word "warrant" be used or that any other word or verbal form be employed.
"It is sufficient if there be a representation of the state of the thing sold, or a direct, positive, unequivocal and express affirmation of its quality and condition, being part of the consideration of the sale, and showing an intention to warrant or make good the quality of the thing sold, and so understood and relied upon, instead of a mere recommendation or expression of an opinion, leaving the buyer to understand that he must still examine and judge for himself; more especially if the subject is within the particular knowledge of the vendor; and the question is for the jury, under the advice of the court." [Carter v. Black, 46 Mo. 384.]
Where the defect is not discoverable upon ordinary inspection representations of soundness made by the vendor with the intent and purpose of inducing the vendee to rely on them and their acceptance by the vendee will constitute a warranty.
"The seller is not permitted to take unfair advantage of his superior knowledge." [Moore v. Koger, supra.] Tested by these rules the evidence of plaintiff discloses a warranty. The defect was latent and with knowledge that it existed defendant's...
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