Afflick v. Streeter
| Decision Date | 03 June 1907 |
| Parties | WILLIAM M. AFFLICK et al., Appellants, v. ROBERT STREETER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. E. W. Hinton, Special Judge.
REVERSED AND REMANDED.
Thos J. Tydings and Jas. P. Boyd for appellants.
(1) The buyer of live stock is entitled and has a right to rely upon statements made by the seller concerning the condition of the animal and to treat such statements as warranties where they are not obviously mere expressions of opinion or dealers talk. 30 Am. and Eng. Ency. Law (2 Ed.), 156; Brauson v Turner, 77 Mo. 489. (2) Appellants have a complete remedy by suing for damages after the purchase money has been paid. Kerr v. Emerson, 64 Mo.App. 159 and cases cited. (3) Upon any theory, the plaintiffs were entitled to recover the amount the hogs were docked on account of pregnancy, and the evidence shows that there were seven sows docked forty pounds each. Twohey v. Fruin, 96 Mo 104. (4) It is a constitutional right of every litigant, when he has offered substantial evidence tending to prove his case, to have the probative force of his evidence determined by the jury; and, for the purpose of deciding whether there is substantial evidence to submit to the jury, his testimony should be taken as true and every reasonable inference therefrom in his favor should be made. Ladd v. Williams, 104 Mo.App. 390. The contract in this case being oral and the terms, especially as to the agreement to pay for the docks on market being controverted, its construction was for the jury. Norton v. Higbee, 38 Mo.App. 467; Davies v. Baldwin, 66 Mo.App. 580.
P. H. Cullen and Arthur Bruton for respondent.
(1) The contract here sued upon is a contract of indemnity to reimburse one for a loss, not a contract of warranty as to either title, equity, or quantity of the thing sold. James v. Libby, 44 Misc. 210, 88 N.Y.S. 812; Brewster v. Countryman, 12 Wend. (N. Y.) 446; Fisher v. Saylor, 78 Pa. St. 84; 22 Enc., "Indemnity," p. 78, etc.; 18 Am. and Eng. Ency. Law (2 Ed.), 167. (2) A recovery cannot be had by an indemnitee who has not performed his covenant which by the terms of the contract is a condition precedent to any liability on the part of the indemnitor. Winton v. Meeker, 25 Conn. 456; Manufacturing Co. v. Hart, 40 Mo.App. 512; Rogers v. Kimball, 121 Cal. 247; Conn. v. Jones, 99 Ga. 608; Pioneer Savings v. Freeburg, 59 Minn. 230, 61 N.W. 25; O'Connell v. Railroad, 187 Mass. 272, 72 N.E. 979. (3) Plaintiff's rights arising out of the contract sued upon are coupled with liabilities, and involve a relation of personal confidence and are such that Streeter, whose agreement conferred those rights, must have intended to be exercised by the plaintiffs and not by their assignor. Butts v. McMurry, 74 Mo.App. 530; Smelting Co. v. Belden, 127 U.S. 387; Rappleye v. Racine Seeder (Ia.), 7 L. R. A. 142; Boykin v. Campbell, 9 Mo.App. 495; Implement Co. v. Iron Works, 129 Mo. 233; Redheffer v. Leathe, 15 Mo.App. 12; Humble v. Hunter, 12 Q. B. 317; Winchester v. Howard, 97 Mass. 305; Boston Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 120; Lansden v. McCarthy, 45 Mo. 106.
This suit was begun in the justice court, whence it was taken by appeal to the circuit court where judgment was rendered for defendant, from which plaintiffs appealed.
The statement of plaintiff's cause of action is substantially as follows. In August, 1905, plaintiffs purchased from defendant a carload of hogs at the price of $ 5.75 cwt. to be delivered in the following month of September. That defendant represented that the hogs were of the kind and description that would sell within ten cents of the highest market price any hogs would be sold for on the market on the days said hogs would be sold. And that he agreed that if the hogs failed to sell within the price named when they were sold, he would refund to plaintiffs the difference between what the hogs actually sold for and the highest market price for hogs sold on the same day. That defendant further agreed that in the event any of the hogs were docked on account of pregnancy, or on account of having been males and used for breeding purposes, he would pay the amount of such "dock." The statement then alleges that plaintiffs relying upon defendant's representations and without having ever seen said hogs, on or about the ___ day of ___, 1905, sold said hogs under a similar agreement except as to price to one, John Rumans, and that on the twenty-eighth of September defendant delivered the hogs to plaintiffs at Sturgeon, Missouri, and they at once delivered them to the said Rumans, who with the knowledge and consent of defendant at once shipped them to Chicago, and sold them on the market at that place.
Plaintiffs allege that said hogs were not of such kind and quality that they would sell at the price represented; that they were inferior in kind and quality; that some of them were pregnant and were docked forty pounds each when sold on the market; that they were sold at less price per cwt. than that named; that plaintiffs settled with said Rumans and paid him the difference in price received and that which defendant represented they would bring, and also paid him for the loss sustained by reason of said seven hogs having been docked. They ask judgment for the amount of the sum paid said Rumans on said settlement.
The plaintiffs introduced evidence tending to show the following state of facts. That on the day stated they purchased from defendant a carload of hogs at the price named; that plaintiffs had never seen the hogs at the time of their purchase; that defendant said they would be nice, straight hogs, none of which would be subject to "dock;" that they would be good enough to bring within the price already mentioned; that if they did not he would pay the difference and would pay all "dock;" that plaintiffs resold the hogs to said Rumans as stated; that they notified defendant that they had sold the hogs to Rumans; that defendant made no objection to the sale; that Rumans after he bought the hogs had a conversation with defendant by telephone in which the latter stated that he was to make the hogs bring the price within ten cents of the top of the market and wanted Rumans to settle with him without shipping the hogs; and that the latter told him he was going to ship the hogs to Chicago and defendant made no objection.
A witness named Snell, who was acting as agent for plaintiffs, testified that before he paid for the hogs defendant discussed the question as to how many of them would be subject to "dock;" that they could not agree about the matter; and that defendant agreed to let the hogs be shipped and to settle the "dock" as reported from the market. Snell further testified that before he paid for the hogs defendant asked him if Rumans was going to Chicago, and that he told him such was the intention and "if that has anything to do with the settlement, say so now, if not, I will settle for the hogs in full, and you can pay back the amount of the dock and he accepted the settlement."
Upon the showing of plaintiffs the court directed the jury to return a...
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