Cloakey v. Bouslog
| Decision Date | 02 August 1951 |
| Docket Number | No. 31635,31635 |
| Court | Washington Supreme Court |
| Parties | CLOAKEY, v. BOUSLOG et ux. |
Robert E. Cooper, Carl C. Conrad, Tacoma, for appellants.
Ward & Barclay, Sedro-Woolley, for respondent.
This is an action for damages based on alleged fraud and deceit in the sale of an undivided one-half interest in a dairy herd. From a judgment in favor of the plaintiff this appeal is taken.
It is uncontroverted that the appellants, Lawrence J. and Ethel Bouslog, husband and wife, sold a one-half interest in a herd of dairy cattle which was under quarantine for Bang's disease, to the respondent, George Cloakey, and that they leased a 100-acre farm to him for three years, the monthly rental to be one half the amount received from the sale of milk from the dairy herd.
Likewise, it is uncontroverted that the herd was moved to the leased farm and there cared for and milked by the respondent, and that Bang's disease spread through the herd to the extent that eighteen of the cows were found to be infected and that all were ultimately sold as beef cattle.
As in most fraud cases, there is sharp conflict in the testimony as to what representations were made. With notably few exceptions, we affirm trial courts on the issue of whether fraud has been established, because the question is determined on the basis of which witnesses the trial court believes. Appellants both testified that they told the respondent that the herd had been quarantined, which testimony the trial court did not believe. Recognizing that we will accept the trial court's findings on disputed facts, appellants take the position that, assuming for the purposes of this appeal that they did make the representation that the cattle were free from Bang's disease, such representation was no more than 'a statement of opinion rather than a statement of fact, considering the surrounding circumstances and experience of the buyer.' Appellants' argument seems to be that an experienced dairy farmer ought to know that any such statement is no more than an expression of opinion unless all of the cattle have been tested within the preceding thirty days, and that the burden is on the prospective purchaser to inquire as to whether a test has been made within that period of time.
There is nothing in this record to suggest that the disease is so prevalent that a statement that a herd is free from Bang's disease must be regarded by an experienced dairy farmer as an expression of opinion and not as a statement of fact. Nor do we find anything supporting such a theory in the available literature on the subject, including the records, statistical and otherwise, of the division of dairy and livestock of the state department of agriculture.
We do not doubt that a statement that a herd is free from Bang's disease, though false, might be made in good faith (of course, if the statement constitutes a warranty, the question of good faith would be immaterial); but here the appellants had every reason to suspect, if not to know, that the herd was infected. It was under quarantine, and six reactors and one suspect had been permitted to remain in the herd after the last test prior to the sale to respondent, although there was evidence that the reactors and the suspect were disposed of prior to the sale. (For an explanation of 'reactors' and 'suspects,' and a somewhat detailed exposition concerning Bang's disease and undulant fever, see the scholarly and informative opinion of Judge Steinert in Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606. We are convinced that the trial court was correct in holding that appellants' statement that the herd was free from Bang's disease was a fraudulent misrepresentation, and that the respondent justifiably relied thereon.
Respondent also claimed that appellants had made the representation to him that all the cows in the herd were with calf and would freshen in due course. As to this representation, appellants make the same contention, i. e., if made, it was merely an expression of opinion.
The respondent knew that the appellants had no dates or data covering the breeding of the cows, and knew that they were pasture-bred. A discussion as to whether the statement that the cows were all with calf was merely an expression of opinion and not a misrepresentation of a material fact, as urged by appellants, or whether it was a misrepresentation of a material fact on which the respondent, under the circumstances as known to him, had no right to rely, which seems to us to be the situation, would be academic. We are convinced that, if this had been the only or principal statement on which respondent predicated his cause of action, no actionable fraud would have been established. However, our conclusion on this issue, while favorable to the appellants, cannot affect the judgment, as an examination of the findings discloses that, although the trial court found that a representation that the cows were all with calf was made and had been relied upon, all of the findings of damages were based on the fact that the herd had Bang's...
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