Fear Ranches, Inc. v. Berry, 72-1221.
| Decision Date | 18 December 1972 |
| Docket Number | No. 72-1221.,72-1221. |
| Citation | 470 F.2d 905 |
| Parties | FEAR RANCHES, INC., Appellant, v. H. C. BERRY, d/b/a Berry Ranch Co., et al., Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Milton A. Oman, Salt Lake City, Utah, on the brief for appellant.
Thomas A. Donnelly, of Catron, Catron & Donnelly, Santa Fe, N. M., and George T. Harris, Jr., of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., on the brief for appellees, H. C. Berry, d/b/a Berry Ranch Co., and Berry Land and Cattle Co., Inc.
Charles D. Alsup, of Krehbiel & Alsup, Clayton, N. M., and Charles C. Spann, of Grantham, Spann, Sanchez & Rager, Albuquerque, N. M., on the brief for appellee, Kelly Perschbacker.
Before JONES*, SETH and DOYLE, Circuit Judges.
This is an action for damages brought by the buyer of cattle against the sellers. The complaint alleges that the cattle had a disease known as brucellosis when purchased, and could not be used for breeding as the buyer planned. The complaint also alleges that these cattle infected other cattle of plaintiff when they were put out to pasture together; that it thereby became necessary to test a large number of cattle for the disease. Further, it was alleged that plaintiff's ranch was quarantined by reason of the presence of the disease, causing additional expenses and losses. The plaintiff asserted that an implied warranty of fitness for a particular purpose, or an implied warranty of merchantability was breached.
The case was tried to the court without a jury, and judgment was given for the defendants. The plaintiff has taken this appeal.
The record shows that the plaintiff corporation, through its president, Mr. Kenneth Fear, Sr., was looking for cattle to stock its ranch in Wyoming. Mr. Fear was put in touch with two Texas cattle traders who showed him the cattle in question on the ranch of defendant, H. C. Berry, near Lucy, New Mexico. Two trips were made to look over the cattle. The defendants were not present at these visits and knew nothing of them at the time. Mr. Fear satisfied himself that these cattle were what he wanted. He so advised the traders he would buy, but it developed they did not have authority to sell the cattle, and they advised Mr. Fear to contact the defendant, Mr. Kelly Perschbacker. A few days later Mr. Fear called Mr. Perschbacker on the phone at his ranch near Clayton, New Mexico, which is some considerable distance from Lucy. During the conversation Mr. Fear agreed to buy the cattle, and Mr. Perschbacker to sell them. The sale was so made subject to the buyer's right to reject ten per cent, and subject to loading on trucks arranged for by the buyer at the Lucy ranch. During this conversation it was agreed that the two would meet at Lucy and the buyer would there take delivery. The stock was so delivered to the trucks after the cut agreed upon was made by the buyer. The gathering and selection took about two days with the parties and their cowboys helping. The cattle were then trucked by the buyer to his ranch in Wyoming, where they were run with other cattle.
About six months after the buyer had taken delivery he was advised that some of his herd was infected with brucellosis. Further, and extensive, testing was done, and shortly thereafter the portion of his ranch where the cattle in question were run together with other cattle of the buyer was quarantined by federal authorities. The result was that the buyer decided to send to slaughter all of the cattle on this portion of his ranch, some 1,600 head, to prevent the spread of the disease. The defendants did not know of this problem of the buyer until he had disposed of the cattle and had brought this action.
The record shows that brucellosis or Bang's disease is very contagious, and may be spread by cattle through contact with each other, and may also be contracted from individuals who have handled diseased cattle, or from trucks in which infected cattle have been transported. The disease causes cows to have a high rate of abortion, and makes them unfit for breeding purposes. The disease does not otherwise affect cattle and does not affect their growth nor make them unfit for human consumption. It has a sixty-day incubation period. The disease cannot be detected by a visual examination of infected stock, as a blood test is required to determine its presence. New Mexico at the time in question was classified as a "modified certified" area with reference to the incidence of brucellosis. Thus the disease was present in less than one per cent of the cattle in the state and in less than five per cent of the herds in the state.
Some question was raised during the course of the trial as to the ownership of the cattle at the time of sale to Mr. Fear. The record shows, and the trial court found, they had been sold shortly before by the defendants Berry to the defendant Perschbacker. Mr. Perschbacker had made no more than a down payment, and it was therefore agreed that the cattle would not be rebranded and would remain on the Berry ranch at Lucy...
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