Boston v. Alexander
| Decision Date | 07 December 1914 |
| Parties | S. M. BOSTON, Appellant, v. J. L. ALEXANDER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Putnam Circuit Court.--Hon. George W. Wanamaker, Judge.
Judgment reversed and cause remanded.
Mills & Mills for appellant.
J. C McKinley for respondent.
--Plaintiff brought this suit in a justice court to recover for a cow he sold defendant for $ 65 and defendant refused to receive. The trial in the circuit court on appeal ended in a directed verdict for defendant and plaintiff appealed. The sale and attempted delivery of the cow at the price alleged is conceded, as is also the fact that defendant refused to receive her and returned her to plaintiff on the ground of a breach of warranty.
The testimony of plaintiff, which was the only evidence heard by the court, discloses the following facts: Plaintiff, a farmer, called upon defendant, his neighbor, at the latter's home, to borrow money to buy feed for his stock and a conversation ensued which culminated in an understanding that defendant, who said he wished to buy a good farm milch cow for the use of his family, would call at plaintiff's farm the next day and look at three cows which plaintiff owned and from which he might make a selection and pay the agreed price in hay at $ 8 per ton. Plaintiff priced one of the cows at $ 60 and another at $ 70. The next day, defendant, being unable to keep the appointment in person, sent his brother-in-law, also a farmer, with full authority to select and purchase one of the cows. The agent inspected the three cows and his choice fell upon the one plaintiff had priced at $ 70. Plaintiff had owned her three or four months, having purchased her from another farmer in the neighborhood, who had informed him that during the preceding summer (this was in February), she had given ropy, dark-colored milk on three or four occasions after bruising her bag in jumping over logs or fences, and that he had put a yoke on her to prevent her from further indulging her breachy propensity. She still carried marks of the yoke on the back of her neck and jaws, but plaintiff states that during the time he had owned her she had exhibited no vicious inclination and had not worn a yoke; that she gave good, pure milk, and that her bag was not in a diseased or injured condition. He was allowed to testify, without objection, to facts and circumstances corroborative of his opinion that the occasional giving of dark and ropy milk may be due to temporary causes and is not necessarily indicative of a permanent defect. Before buying the cow defendant's agent asked plaintiff about "her milking qualities and if her bag was all right" and was told that "her bag was all right and that this cow is as straight as a whip as far as I know." No other questions were asked by the agent and plaintiff did not go into the subject of the cow's history before he owned her but confined his praises to the time of his ownership. The agent haggled over the price and plaintiff finally agreed to sell her for $ 65, whereupon the agent bought her and drove her to defendant's farm. The next day defendant returned her to plaintiff's farm and she has since been there in the possession of plaintiff.
It appears from a conversation plaintiff afterward had with defendant's agent that a neighbor called at defendant's farm and, seeing the cow, asked "if that wasn't the Mat Hurley cow," and being answered in the affirmative said, "Well, that cow gave bad milk last summer." This information moved defendant to return the cow. Plaintiff called the following day upon defendant and insisted that he accept the cow, but defendant refused on the ground that plaintiff had warranted her and that she did not fill the warranty. He offered to take one of the other cows but plaintiff refused, saying, "When I trade, I trade to keep, I don't never back out of a trade," and with this Parthian shot he left and proceeded to the justice court where he brought this suit. He states the cow was worth $ 75 at the time of defendant's breach of the contract and therefore, admits he has suffered no pecuniary damage. In unwillingly permitting the cow to be returned and in since keeping and using her, his position became that of a vendor who, tendering full performance of the contract of sale, is met with the wrongful refusal of the vendee to receive the property. In such case the liability of the vendee is to respond in damages for the loss sustained by the vendor, such loss being measured by the difference between the contract price and the market value of the property at the time of the vendee's breach. Measured by this rule plaintiff has sustained no actual damage, since he states the market value of the property exceeded the sale price and in no event may he recover more than nominal damages. "In an action by vendor against the vendee, for the nonacceptance of property sold as contracted for, the measure of damages is the amount of actual injury...
To continue reading
Request your trial