Broer v. Dr. Fenton's Vigortone Co.

• Decision Date: 16 June 1942
• Docket Number: 45946.
• Parties: BROER v. DR. FENTON'S VIGORTONE CO.
• Court: Iowa Supreme Court

4 N.W.2d 416

231 Iowa 1276

BROER v. DR. FENTON'S VIGORTONE CO.

No. 45946.

Supreme Court of Iowa

June 16, 1942

Lundy Butler & Lundy, of Eldora, for appellant.

Donnelly Lynch, Anderson & Lynch, of Cedar Rapids, for appellee.

OLIVER Justice.

This is an action at law for damages for breach of warranty. The petition alleged plaintiff owned 83 hogs, 20 of which were afflicted with Necro; that defendant's salesmen and representatives orally warranted its proprietory feeds and medicines would cure said disease; that relying thereon plaintiff purchased said remedies and the hogs were treated therewith; that thereafter most of the remaining hogs contracted Necro, which caused the death of 50 hogs and the stunting of 28 others. The answer was a general denial. Trial to a jury resulted in a verdict for defendant. From the judgment thereon plaintiff prosecutes this appeal.

Veterinarians testified Necro is a necrotic condition or thickening of the walls of the intestines. The disease is transmitted by hogs picking up the excreta of infected hogs. It is a disease of filth. The infection is around buildings and barn lots in dust and dirt. The incubation period of the bacteria is about 10 to 15 days. Some effects of the disease are loss of appetite, emaciation, enteritis, scouring and frequently death. There is no recognized cure for Necro known to the veterinary profession. Cleanliness and sanitation are essential to its treatment. The infection may spread among a high or low percentage of the hogs, depending somewhat upon the virulence of the germ and the susceptibility of the animal.

Appellant was familiar with the disease. His pigs were dying from it. He testified the salesmen called at his place and told him "Dr. Fenton's Treatment and Vigortone will cure Necro." "We can cure that up for you. If you will follow directions, I will guarantee results." Appellant also testified they told him he would lose some of the hogs already exhibiting symptoms of the disease. A salesman gave appellant an instruction sheet, showed him how to mix the remedies, and agreed to call every day or two to see that appellant was following the directions.

I. Most of the assignments of error have reference to the condition of the shed in which appellant placed and kept the hogs during the time he was feeding the remedies to them. Over appellant's objections, appellee was permitted to introduce evidence that the floor of this shed was covered with dust and dirt several inches deep so that the hogs moved around in clouds of dust; that it was an unsanitary, filthy and improper place for hogs; that prior to the time the hogs were moved to the shed the salesman instructed appellant to clean the cement floor and sprinkle it with oil for the purpose of disinfecting it and holding down the dust; that although the salesman upon his subsequent calls at the farm repeatedly protested and urged that the shed be cleaned, appellant failed to do so. Appellant himself, upon cross examination, admitted his hired man might have told him the salesman had called to tell appellant he would lose pigs, if he did not clean the shed.

The principal claim of error is that this was an affirmative defense which appellee was required to specifically plead and that because appellee's answer was a general denial only, such evidence was inadmissible. In discussing this contention we will assume, without so deciding or intimating, that appellant's pleading and evidence of warranty to cure were sufficient to justify submission of that question to the jury.

Warranty has been defined as an express or implied agreement, collateral but annexed to or an incident to the agreement to transfer the title, by which the seller undertakes to vouch for the title, quality or condition of the thing sold. American Fruit Product Company v. Davenport Vinegar & Pickling Works, 172 Iowa 683, 699, 154 N.W. 1031, 1036.

In this case the arrangement shown by the record contemplated the feeding of the remedies and care of the hogs by appellant. He was given instructions for doing this.

It was practically undisputed that one of these instructions was that he remove the dust and filth from the hog house and oil the floor. According to his own testimony, the warranty was expressly conditioned upon his following the directions given him.

The burden was upon appellant to establish the warranty, the breach and the damages. Among other things, he was required either to prove substantial compliance upon his part with his obligations...