Broquet v. Tripp

• Decision Date: 11 June 1887
• Citation: 36 Kan. 700,14 P. 227
• Parties: ERNEST BROQUET v. HIRAM S. TRIPP
• Court: Kansas Supreme Court

14 P. 227

36 Kan. 700

ERNEST BROQUET v. HIRAM S. TRIPP

Supreme Court of Kansas

June 11, 1887

Error from Mitchell District Court.

ACTION brought by Tripp against Broquet, to recover damages arising from the sale of certain sheep. The plaintiff stated in his petition that on or about September 21, 1882, he bought and received of defendant two hundred sheep, for which he paid $ 650; that on or about February 1, 1883, he bought and received of defendant two hundred other sheep, for which he paid $ 700, and that defendant warranted all of said sheep to be sound and free from disease. Plaintiff averred that all of the sheep were unsound and diseased when bought by him as aforesaid, and became of no use to him; that more than one hundred of the first flock, and more than one hundred and fifty of the second flock, died by reason of said unsoundness and disease; that he had incurred great expense in feeding keeping and caring for said sheep, and in providing medicines for them, and had suffered great loss because said sheep communicated disease to his other sheep, by reason whereof his other sheep died. Plaintiff averred that in case of the flock first purchased as aforesaid he had sustained damages in the sum of $ 950, and in the case of the second flock damages amounting to $ 1,050.

The defendant answered, denying that he gave any warranty of said sheep, and claiming upon a certain promissory note for $ 500 and interest, given him by plaintiff. The plaintiff filed a reply. Trial by jury at the June Term, 1885.

It appears from the evidence that Tripp bought the first two hundred sheep through his agent, one Ramage, and that the plaintiff, being a commercial traveler, did not give them any personal attention whatever, but put them in charge of his said agent; that in February, 1883, plaintiff bought two hundred more sheep of defendant, and that one Ovelman, a traveling-man, bought of defendant the same number of sheep out of the same flock; that afterward all these sheep bought in February were placed in the care of Ramage, and turned in with the sheep bought in the previous September; that Ramage marked the first two hundred sheep in order to distinguish them from those he received in February. It also appears from the evidence that the sheep when bought seemed sound and healthy, but soon after showed signs of disease, to wit, the scab; and that the defendant did not know at the time of the sale that they were diseased.

A verdict was rendered for plaintiff for $ 850. Defendant moved for a new trial, which motion the court overruled, upon the condition that the plaintiff would remit $ 350 of the verdict. This remission was agreed to. Judgment for plaintiff for $ 500 and costs. The defendant, Broquet, brings the case here.

Judgment affirmed.

L. J Crans, for plaintiff in error.

A. H. Ellis, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

Plaintiff in error, defendant below, makes several assignments of error. The first one that we wish to consider is, that the court erred in admitting testimony, over the objection of the defendant, tending to show the condition of the entire flock of sheep kept by Ramage, including the two hundred purchased by Ovelman in February, 1883. He claims that unless the sheep of the plaintiff were distinguished from those of Ovelman there could be no testimony introduced showing that they were diseased. We think that this objection is not well taken. The testimony of the witnesses was that they were all of the same quality of sheep purchased from Broquet, and came from the same flock owned by him, and that it was impossible to tell which sheep belonged to either purchaser, except the two hundred that were marked by Ramage. If the claim of the defendant is correct, neither Ovelman nor the plaintiff could have recovered any damages arising from the breach of the defendant's warranty of the sheep bought in February. There was no confusion or commingling of the sheep by the plaintiff or his agent for the purpose of concealing the facts from or manufacturing evidence against Broquet, or in any manner defrauding him. The flocks were put together simply for the reason that they could be more easily cared for in one flock than in separate flocks. The court moreover, in its instructions to the jury, cautioned them against allowing to plaintiff in this case damages which Ovelman may have sustained because his sheep were diseased, in language so strong...