Brush v. Smith

• Decision Date: 14 April 1900
• Citation: 82 N.W. 467,111 Iowa 217
• Parties: S. A. BRUSH, Appellant, v. FRANK P. SMITH
• Court: Iowa Supreme Court

82 N.W. 467

111 Iowa 217

S. A. BRUSH, Appellant, v. FRANK P. SMITH

Supreme Court of Iowa, Des Moines

April 14, 1900

Appeal from Poweshiek District Court.--HON. BEN MCCOY, Judge.

ACTION at law to recover damages for false and fraudulent representations and breach of warranty in the sale of hogs. There was a trial to jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

Reversed.

C. H Washburn for appellant.

Scott & Reed and S. R. Clute for appellee.

OPINION

DEEMER, J.

The petition is in two counts. In the first it is alleged that plaintiff purchased some hogs from defendant at a public sale, and that defendant warranted them to be free from disease; that the hogs were not as warranted, but were afflicted with cholera; that three of the hogs so purchased died of the disease; and that the sick hogs communicated the disease to other hogs of plaintiff that were theretofore sound and healthy, whereby he lost twenty more. Damages were asked for the value of the hogs so lost, and consequential damages resulting from the sickness and death of all the animals. The second count is to recover the same damages for false and fraudulent representations in the sale of the animals. Defendant admits the sale, but denies that the hogs were diseased when he sold them. He further pleaded contributory negligence of plaintiff in placing the animals purchased at the sale with his own healthy animals. In the ninth instruction given the jury, the court said, in effect, that, if they found for plaintiff on the first count, there could be no recovery on the second and, if they found for him on the second, there could be no recovery on the first. In the previous instruction the jury were told that the measure of damage was the same under either count. There was no error in this instruction. Joy v. Bitzer, 77 Iowa 73 (3 L. R. A. 184, 41 N.W. 575). As the eight instruction is not objected to, the giving of the ninth was manifestly correct, for the two causes of action grew out of the same transaction. But, if the instruction was not technically correct, no prejudice resulted; for the jury found that plaintiff was not entitled to recover on either count. Fisk v. Railway Co., 83 Iowa 253; Mayne v. Bank, 80 Iowa 710, 45 N.W. 1057.

II. In the eleventh instruction the court said "that if plaintiff, in taking the hogs in controversy among his own hogs, failed to use ordinary care in so doing, or negligently and carelessly permitted them to come in contact with and run with his well hogs, plaintiff cannot recover for loss by reason of the infection of his hogs from the hogs in controversy, if so infected." This instruction is said to be erroneous because it eliminates the plaintiff's knowledge of the diseased character of the animals purchased of defendant. We do not think so. In order to determine the question of negligence or ordinary care, plaintiff's knowledge was, of necessity, an essential feature, and there is nothing that inhibits the jury from considering it. Moreover, in other parts of the charge plaintiff's knowledge was made a material feature. In any event, the instruction was without prejudice, under the rules announced in the Fisk and Mayne Cases,...