Connable v. Clark

• Decision Date: 05 May 1887
• Citation: 26 Mo.App. 162
• Parties: E. H. CONNABLE, Appellant, v. C. F. CLARK, Respondent.
• Court: Kansas Court of Appeals

26 Mo.App. 162

E. H. CONNABLE, Appellant, v. C. F. CLARK, Respondent.

Court of Appeals of Missouri, Kansas City.

May 5, 1887

APPEAL from the Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action for the recovery of damages on account of the breach of a verbal warranty in the sale of a jack, by the defendant, to the plaintiff. The sale was made in Audrain county, where the defendant lived and was engaged in business. The plaintiff lived in Clarke county, distant from Audrain county. The warranty alleged in the petition was " that the jack was a good breeder, a good coverer, and a good foal getter." The defendant admitted that he warranted the jack to be a " good breeder." The principal question in the case was as to the true interpretation, and the real meaning, of the words, " good breeder," as used in the warranty made by the defendant. The defendant introduced evidence tending to show that those words, applied to a jack, meant, among those who were accustomed to dealing in, and handling them in Au drain county, that a jack gets good colts. The plaintiff, in rebuttal, offered to testify to the following:

" That he had been handling jacks and stallions for three or four years, in Clarke county, Missouri, his home and during that time had associated with a number of men in the same business, and never, until Clark made the claim to him in the conversation in the court house, at the last June term of court, heard that the words, ‘ good breeder,’ as applied to a jack, meant only that the animal gets good colts; that, as he had always heard the expression used, it goes to all the qualities of an animal kept for breeding purposes."

To this testimony the defendant objected, on the grounds that it was immaterial what the term might mean in Clarke county, one hundred miles from the place where the trade was made, but that evidence as to the meaning of the term should be confined to its meaning in the locality where the sale was made. And the court sustained the objection. To which ruling of the court the plaintiff excepted, and at the time saved his exceptions. The court gave for the defendant, among other instructions, the following:

" 4. The court instructs the jury that, if they believe from the evidence that the term, ‘ good breeder,’ as used among persons in the locality where the trade was made, who have peculiar knowledge and information in the business of raising, buying, selling, and standing jacks means, simply, that the jack's colts are of a good quality, and that the term does not mean, as used among such persons, that the jack is a good coverer, or a sure foal getter; and if the jury believes further that the defendant warranted the jack in question to be a ‘ good breeder’ only, then it is immaterial whether the jack was a quick or slow coverer, or whether he was a sure foal getter, either before or after the sale, and the verdict must be for the defendant."

The court, of its own motion, gave the following instruction:

" 2. The court instructs the jury that, if a term phrase, or word, has been shown, by testimony in the case, to have acquired, by common usage in the locality where a trade is made, a special significance or meaning, then the parties are to be presumed to have had in mind such special meaning at the time of said trade, but it is for the jury to determine, from the testimony in the case, whether any word, term, or phrase, used by the parties in making the trade, had acquired any such special meaning, and if so, what such special meaning was."

GEO. ROBERTSON, for the appellant.

I. The words, " good breeder," are not a subject of expert testimony, because they have a well defined and generally understood meaning in the English language. See Webster's Dictionary.

II. If testimony were admissible to show the local, peculiar meaning of the words, as applied to jacks, or other male animals kept for breeding, such questions should have been put to the witness as would show, first, that they had a local, peculiar meaning, and, second, what that local, peculiar meaning is, at the time and place of the sale, as applied to such an animal, and that there was a custom or usage among dealers in such animals, in relation to the meaning of these words. " It should be remembered that, when evidence in support of a trade usage seeks to alter the natural meaning and construction of words, it must, in every case, be clear and consistent." Benj. on Sales, 1 Amer. Notes, by Chas. L. Corbin, 224. " A usage of trade cannot be proven by the understanding, or opinion, of witnesses as to the law, or what should be the rule, but the witness should testify as to the existence of the usage." Abbott's Trial Evid. [1 Ed.] 297; Allen v. Bank, 22 Wend. 215; 15 Wend. 482.

III. The testimony of the several witnesses, Potts, Dr. Berry, White, Wifly, Hitt, Shock, Harrison, Shell, and Lan Morris is not sufficient to show that it was a general and notorious usage that these words " good breeder" had acquired a local and peculiar meaning, different from their ordinary and natural meaning.

IV. To permit usage to govern and modify the law in relation to dealings of parties, it must be uniform, certain and sufficiently notorious to warrant the legal presumption that the parties contracted with reference to it. Citizen's Bank v. Graflin, 1 A. R. 66; Willis v. Bailey, 10 A. R. 407; Southwest, etc., Co., v. Stanard, 44 Mo. 71; Clamorgan v. Guise, 1 Mo. 141; Martin v. Hall, 26 Mo. 386; Kimball v. Browner, 47 Mo. 398; Ober v. Carson, 26 Mo. 209; Walsh v. Miss. Trans. Co., 52 Mo. 434. Or the evidence must show that the parties did have actual knowledge of the usage. Authorities supra. Mere opinions of individuals will not establish a custom or usage. Marine National Bank v. National Bank, 17 Am. Rep. 305.

V. The evidence admitted as to the mere opinions of witnesses, and as to other matters entirely irrelevant to the matters in issue here, was error. Such testimony is only calculated to mislead the jury. 1 Greenl. Evid., sect. 52; 1 Whart. Evid. [2 Ed.] sect. 29.

VI. The court erred in refusing to let the testimony of plaintiff, Connable, go to the jury, to the effect that he never heard that the words " " good breeder," as applied to a jack, mean only that the jack got good colts, and knew nothing of the peculiar meaning, as applied to them by defendant. The testimony showed that plaintiff was in the business of handling jacks and stallions, and daily associated with men engaged in that business; talked with other men than defendant at Mexico and vicinity, where the sale was made, on the subject, and had visited Wellsville, about twenty miles from Mexico, and there met men engaged in the same business, and he should have been allowed to testify that he never heard the meaning of the words " good breeder," applied to a jack, before Clark put that interpretation on the words, in June, 1885. Plaintiff should have been allowed to testify upon the grounds (1) That the jury should have known whether the parties contracted with reference to the peculiar meaning of these words, or their general meaning. (2) To enable the jury to ascertain if any such usage or custom existed. Martin v. Hall, 26 Mo. 386; Walsh v. Miss. Trans. Co., 52 Mo. 434; Wallis v. Bailey, 10 A. R. 407; Fisher v. Sargent, 10 Cush. 250. Not only the existence of such usage, but whether knowledge of it exists in any particular case is a question of fact for the jury. Winson v. Dilloway, 4 Metc. [Mass.] 221; 10 Cush. supra; Wallis v. Bailey, supra; 1 Whart. on Evid. [2 Ed.] sect. 962; Browne's Leg. Max. 691. And especially should this testimony have been admitted by the court, when defendant's answers on the same subject were confined to no locality and time.

VII. The court erred in giving defendant's instruction, telling the jury they could not find on the second count in the petition. There was abundance of testimony on which to find consequential damages. 1 Suth. on Dam. 108; also sect. 4, subject, " Consequential Damages" ; 2 Benj. on Sales, sect. 1307, 1336, 1358; Walls v. Gates, 4 Mo.App. 1; Shouse v. Neiswaanger, 18 Mo.App. 236; Wolcott v. Mount, 38 N.J. Law, 496. The second count covered the whole case, as well as damages. Van Wyck v. Allen, 6 Daly [N. Y.] 376.

VIII. The court erred, also, in refusing plaintiff's instruction on the subject of warranty. It was a fair exposition of the law for the jury, under the evidence. And it was error for the court to receive the general verdict of the jury without the special verdict. Fennewick v. Logan, 1 Mo. 401; Caldwell v. Stephens, 57 Mo. 589. So there was error in giving defendant's instruction as to warranty, as there was no evidence in the case to warrant it. So there was error in giving defendant's instruction, which assumed a fact, instead of submitting it to the jury.

IX. Instruction number two, given by the court on its own motion, is erroneous, for the reason that it assumes that the usage referred to was so notorious, uniform, certain, and general, that the plaintiff was presumed to have knowledge of it, and precludes the idea that the plaintiff, before being bound by it, must have actual knowledge of the usage, or that it must be so notorious, etc., that he is presumed to know it. See authorities cited, supra, under point second.

X. The verdict is against the weight of the evidence in the case. Defendant says in his testimony: " I never warranted the jack to be a good foal getter and plaintiff never asked me to. I am sure I never did, nor never said I did." In his letter to plaintiff of May 23, 1885 defendant says: " I told you what the jack had done, and that he had proven himself to be a good foal getter and a good breeder, which I...