Butcher v. Death

• Citation: 15 Mo. 271
• Parties: BUTCHER v. DEATH & TEASDALE.
• Decision Date: 31 October 1851
• Court: United States State Supreme Court of Missouri

15 Mo. 271

BUTCHER

v.DEATH & TEASDALE.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

HART, for Appellants.

HUDSON, for Respondent.

GAMBLE, J.

The plaintiff, Butcher, sued Death & Teasdale, alleging in his petition, that they had sold him a quantity of hams, representing them to be sound, and of the best quality, and that he paid the bill for the hams, at the stipulated price; that the hams were shipped to Cincinnati, and upon being opened and examined, were found deficient in quantity about 1800 pounds, and were unsound and spoiled; that being obliged to sell them at a sacrifice, he had lost by the deficiency in quantity and by the bad quality of the article, $187. The defendants answered separately. Death stated that he was a partner of the firm of James F. Death & Co., and that the firm sold to the plaintiff the hams in question; that the firm did not warrant the quality of the hams, but that they were selected from a large quantity belonging to the firm, by the defendant, James H. Teasdale, who was not a member of the firm, nor interested in the hams, nor in the sale of them made to the plaintiff; but was a person employed by the plaintiff himself, to select for him the hams which Teasdale should judge to be of good quality. The answer states, that the hams, after being selected by Teasdale, were weighed by the city weigher, and amounted to the quantity with which the plaintiff was charged, and for which he paid. The defendant, Teasdale, in his answer, denied that he had any interest in the hams sold to the plaintiff, and stated, that he was employed by the plaintiff, to examine some hams that the plaintiff was about to purchase from James F. Death & Co., and to select such as were good, and that he did, at the request of the plaintiff, make the selection, and had no further concern in the transaction.

At the trial, it appeared, that at Cincinnati the hams were opened, and that some of them were injured and spoiled. The deficiency in quantity is supposed to be proved by the difference between the quantity sold there and the quantity charged to the plaintiff here. It conclusively appeared, that the defendant, Teasdale, was not a partner of Death & Co., and that he was not interested in the sale between that firm and the plaintiff, and that he had no other part in the transaction than in selecting the hams at the request of the plaintiff.

After the evidence closed, the court instructed the jury: 1. That all the allegations in the plaintiff's petition, which are not specifically denied, are to be taken as true, unless they have expressly denied in their answer, that they have any knowledge or information sufficient to form a belief. 2. If the jury believe from the evidence, that the plaintiff bought of Death or Death & Co., the hams in question, and that said hams were bought on the representations of said Death or Death & Co., said hams to be of a stipulated quantity and quality, and said hams were of inferior quality or deficient in quantity, they will find for the plaintiff as against the defendant, Death. 3. If the jury believe from the evidence that the plaintiff bought the hams, relying upon the inspection of Teasdale, and that said Teasdale did not fairly inspect said hams, and that said hams were unsound or of inferior quality to those contracted for, the jury will find for the plaintiff as against said Teasdale, one of the defendants, for the damages sustained by the plaintiff in consequence of the inferior quality of the hams. 4. That if the jury believe from the evidence, that the plaintiff agreed to purchase said hams on the judgment of Teasdale, and that Teasdale did not inspect said hams, but failed to do so, and that said hams at the same time were unsound, then they ought to find for the plaintiff. 5. The jury, if they believe that the evidence so requires, may find for one defendant and against the other. 6. If the jury find for the plaintiff, the measure of damages is the difference between the amount paid, and the price which should have been paid for the hams delivered, estimating the hams delivered, at their real value, both as to quantity and quality.

The court at the request of the defendants, gave these instructions: 7. If the jury believe from the evidence, that the hams in question, were bought of Death or Death & Co., not relying on the representations of Death or Death & Co., but on the inspection of Teasdale, and that Teasdale did inspect the hams, then they will find for the defendant, Death, as far as the quality of the hams is concerned. 8. If the jury believe from the evidence, that the hams, in question, were bought of Death or...