Branson v. Turner

• Decision Date: 30 April 1883
• Citation: 77 Mo. 489
• Parties: BRANSON v. TURNER, Appellant.
• Court: Missouri Supreme Court

77 Mo. 489

BRANSON

v.TURNER, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Gasconade Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

Belch & Silver for appellant.

Burchard & Read for respondent.

PHILIPS, C.

This action was begun in a justice's court, and tried on appeal in the circuit court, to recover the purchase money for a yoke of oxen sold by respondent to appellant. The whole negotiation seems to have been conducted by correspondence, and is evidenced by the following letters:

WOODLAND, Mo., January 27th, 1878.

MR. TURNER: A few lines in regard to you about some steers I have to sell. I have one of the finest yoke of steers almost in Gasconade county, and the finest matches, big and very fat. I have been stall-feeding for some three or four months, and will sell them cheap for beef or work steers. They will weigh 1,200 pounds. One of them has a sore under his neck down close to his jaw, but that don't hurt him; it is most well. I will pay your expenses up here if you will buy the steers. Come up and see them, and there are some more steers here for sale, but you find none better for work than mine. Yours,

THOS. J. BRANSON.

MORRISTON, Mo., February 2nd, 1878.

MR. T. J. BRANSON, Woodland, Mo.:

Dear Sir: If your cattle are as good as represented, you can deliver them to me about the 25th of this month. I will pay you cash on delivery, $75. Answer by return mail and oblige.

Yours,

C. C. TURNER.

On this letter from Turner, Branson delivered the cattle. Branson owned a saw mill, and there was evidence that he bought them to use in hauling at this mill; and that he used them once. There was also evidence tending to show that the sore on the steer's neck was material, affecting the value of the steers. Appellant offered to prove by experts that the sore on the neck rendered him unfit for beef; which proof the court excluded. The parties lived thirty miles apart. About two weeks after the delivery of the cattle, Turner started them back to Branson, though it does not appear that they were delivered to him.

On this state of the case plaintiff asked the following instructions, which the court gave:

1. If there was a contract of sale, the terms of which were contained in Branson's letter of January 27th, 1878 together with Turner's answer of February 2nd, 1878, and you are satisfied that plaintiff Branson, by himself or agent, performed all the conditions of such contract on his part, then he is entitled to recover the price agreed on, if you believe the cattle were as represented in plaintiff's letter to defendant.

2. If in pursuance of a letter from defendant containing a proposal to purchase the cattle in controversy, the plaintiff, or his agent, delivered said cattle to defendant at the time and place mentioned in said letter, or had such cattle at such time and place ready to deliver, and offered to deliver them to defendant, then defendant is bound to pay the price agreed upon, whether he accepted and received them or not, provided that the cattle were such as they were represented to be in plaintiff's letter to defendant of January 27th, 1878.

3. If the jury believe that the plaintiff, or his agent, delivered to defendant the cattle in controversy, and that they were accepted and received by him, they will find for plaintiff the price agreed upon, unless they further believe that plaintiff made false and fraudulent representations in regard to the cattle which actually deceived and misled defendant to his injury.

4. If the defendant Turner used the oxen in controversy as his own, or exercised over them the rights of ownership after they were taken to Morriston by plaintiff's brother for the purpose of delivery, these are circumstances from which you may infer they were accepted and received by defendant.

Defendant asked the following instruction, which was given:

1. The jury is instructed that the terms of the contract are, that the plaintiff, by his letter dated January 27th, 1878, offered to sell to defendant a yoke of cattle, almost the best in Gasconade county, and the finest matches, big and pretty fat, and offered to sell them for beef or work steers, weighing about 1,200 pounds, one of them with a sore under his neck, that the sore doth not hurt him, and is almost well, and the defendant agreed to purchase the same provided they were as good as represented, and that the defendant was not under this contract bound to receive the same unless the steers came up to this description, and it devolves on the plaintiff to prove this, and in the absence of this evidence the jury will find for defendant.

The defendant also asked for the following instructions, which were refused:

2. It devolves on the plaintiff to prove to your satisfaction that the steers were as represented by plaintiff, and in the absence of such proof, you must find for defendant.

3. If the jury believe from the evidence that the sore on the neck was not nearly well, but was liable to continue as a sore, then the plaintiff cannot recover, although the same did not materially injure him as a work ox.

4. If the sore on the neck of one of the steers decreased the value of the same for any purpose, then the plaintiff cannot recover on his contract.

5. Although the jury may believe from the evidence that plaintiff agreed to sell defendant a yoke of oxen on the conditions mentioned in his letter, and deliver the same to the defendant, and that defendant afterward found that the oxen were not as represented and returned the same to the plaintiff, and the plaintiff received the same without objection, and still holds them, then this is a rescission of the contract, and the plaintiff cannot recover.

There was a verdict and judgment for plaintiff for the whole purchase money, and the defendant appealed to this court.

The questions presented for determination are the giving and refusing of instructions, and the exclusion of evidence.

1. WARRANTY OF CHATTELS: obvious defect.

The negotiation between the parties to this contract having been conducted in a written correspondence, without a view of the steers, reference to the letters must control its meaning. The vendor, after representing the condition of the animals, said he was willing to “sell them cheap for beef or work steers.” Had there been nothing more, and the vendee had received and retained them for two weeks with the sore on the neck as an obvious defect, I should be inclined to hold that this defect was not such a breach of the alleged warranty, as, under such a state of facts, would entitle the vendee to return the steers. But a vendor may warrant against an obvious defect. Benjamin on Sales, (3 Ed.) §§ 616 et seq. Especially is this so, where the nature and extent of the disorder is lurking, and may reasonably be supposed to be more within the knowledge of the vendor than the vendee. Thompson v. Botts, 8 Mo. 710. Branson in his letter went further. He was not...