Carey v. Bilby

• Decision Date: 07 March 1904
• Docket Number: 1,929,1,930.
• Citation: 129 F. 203
• Parties: CAREY v. BILBY et al. (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

129 F. 203

CAREY v. BILBY et al. (two cases).

Nos. 1,929, 1,930.

United States Court of Appeals, Eighth Circuit.

March 7, 1904

John S Bilby and Russell I. Bilby, the defendants in error in case No. 1,929, brought an action against John L. Carey, the plaintiff in error, to recover certain damages for injuries which they claimed to have sustained in consequence of their being induced by the defendant, Carey, to purchase from him certain Texas cattle through false representations. John S Bilby and John E. Bilby, the defendants in error in case No 1,930, brought a similar action against John L. Carey plaintiff in error. The complaints in the two cases were substantially alike, except that in case No. 1,929 the damages claimed by plaintiffs below were $13,611, whereas the damages claimed in case No. 1,930 was the sum of $3,809. The complaints stated, in substance, that in the month of May, 1897, the defendant, Carey, and one C. J. Hysham were the owners of 755 head of cattle, which had been shipped by them from the state of Texas to the city of St. Joseph, Mo.; that said Carey and Hysham offered to sell to the plaintiffs below certain of said cattle, and, to induce them to buy, represented that the cattle had been kept during all of the preceding winter and spring in a part of the state of Texas, which was entirely free from, and not infected with, a certain contagious disease commonly known as 'Spanish Fever,' and that they had not been driven over or in the vicinity of any territory in the state of Texas which was infected by said disease, and had not been exposed thereto, but were in a sound and healthy condition; that, relying on this representation, and believing the same to be true, they purchased a certain number of the cattle from Carey and Hysham, and paid them therefor; that the representations aforesaid, at the time they were made, were known to the vendors of the cattle to be untrue; that they also knew that the purchasers of the cattle would pasture them on lands in the state of Missouri with a large number of Missouri and other native-born northern cattle; that they were so pastured by the vendees, after they were purchased, with other northern-bred cattle; that, in consequence of their being affected with the contagious disease aforesaid, they communicated the disease to other cattle with whom they were herded, which belonged to the plaintiffs below, and that in consequence thereof the plaintiffs lost a large number of cattle of great value, and that they were damaged in the one case to the amount of $15,840 and in the other case to the extent of $4,580, in consequence of the disease in question being communicated to their respective herds. The plaintiffs below further alleged that they had been paid by C. J. Hysham, on account of the damages claimed in case No. 1,929, the sum of $2,229, and that they had been paid by C. J. Hysham, on account of the damages claimed in case No. 1,930, the sum of $771, leaving a balance of damages due to them in the one case in the sum of $13,611 and a balance due to them in the other case in the sum of $3,809.

Among other allegations contained in the defendant's answer it was admitted that the plaintiffs had received from C. J. Hysham the sums of money alleged in the complaints, and it was alleged that the sums so paid to the plaintiffs by Hysham were received and accepted by said plaintiffs in full release, satisfaction, and discharge of the pretended causes of action sued upon in said actions, and in full release of said Hysham from all liability thereon. On the trial of the cases the receipt which was signed by the plaintiffs when the sums of money were paid to them by C. J. Hysham was introduced in evidence, and was of the following purport:

'Whereas, on or about the . . . day of May, 1897, T. J. Hysham acting for C. J. Hysham or C. J. Hysham & J. L. Carey, as partners or either of them, purchased for said C. J. Hysham or C. J. Hysham & J. L. Carey as partners, or either of them, certain cattle of Comer Bros., in the State of Texas, and

'Whereas, said cattle were shipped from the State of Texas and were sold and delivered by said C. J. Hysham or C. J. Hysham and J. L. Carey as partners, or either of them, to J. S. Bilby in St. Joseph, Missouri, on or about the . . . day of May, 1897, and

'Whereas, said J. S. Bilby did on the day last above named receive from said C. J. Hysham, or C. J. Hysham & J. L. Carey as partners, or either of them, at St. Joseph, Missouri, about 756 of said cattle, and did at said time execute and deliver to the said C. J. Hysham his certain promissory note for the purchase price of said cattle, together with a chattel mortgage on said cattle thus bought by him securing said note, and

'Whereas, the said J. S. Bilby has since paid off and discharged said note and mortgage, and

'Whereas, after buying said cattle said Bilby took the same to his farms described in said chattel mortgage, and

'Whereas, after taking said cattle to his farm, the said Bilby claims that many cattle owned by him or others have died, and that many other cattle became sickened and impoverished, and

'Whereas, the said Bilby claims that the said cattle thus dying and the others thus becoming sickened and impoverished was caused by reason of what is commonly called the Spanish or Texas fever, and

'Whereas, the said Bilby claims the said Spanish or Texas fever was imparted or conveyed by the cattle that he thus bought at St. Joseph, Missouri, as aforesaid recited.

'Now, therefore, in consideration of the sum of $3,000.00 to me in hand paid by T. J. Hysham and C. J. Hysham, and the further consideration of the said T. J. Hysham and C. J. Hysham having assigned to me all claims and causes of action that they, or either of them have against the said Comer Bros., growing out of or in any way connected with the said purchase of said cattle from said Comer Bros., I. J. S. Bilby, fully release and discharge him, the said T. J. Hysham, and the said C. J.

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