Syllabus
by the Court.
1. Baum
purchased from Coyle & Smith oats to be fed to his livery
horses, paid the purchase price, and received the oats. This
constituted an executed contract, and the ownership of the
oats passed. After using a portion of the oats, Baum
discovered that they were unfit for feed by reason of having
castor beans intermingled with them, and notified the vendors
of such fact. By agreement, he returned the unused portion of
the oats, and was paid for such unused portion the same rate
per bushel as the original purchase price. Held
that this did not constitute a rescission of the contract
but was a new agreement, by which a resale was made, and the
question as to whether the new agreement amounted to a
compromise, or accord and satisfaction, of the damages
occasioned by breach of the implied warranty of quality, was
a question of fact to be determined from the agreement
itself, and the intention of the parties at the time.
2. When
a dealer in feed sells oats to a livery man, for the purpose
of being fed to his livery horses, and such purpose is known
to the seller at the time of the sale, and the vendee does
not examine or inspect the oats, there is an implied warranty
that the oats are reasonably fit for the purpose for which
they are intended; and if such oats contain castor beans, a
poisonous substance when fed to horses, this constitutes a
breach of the warranty, for which an action will lie.
3. When
a cause of action in tort and one ex contractu are improperly
blended in the same petition, and no objection is made to the
same until after plaintiff's proof is introduced, and it
appears from the special findings of fact by the jury, the
instructions of the court, and the whole record, that the
case was determined upon the theory of a breach of contract
and the elements of tort did not enter into the final
results, error of the trial court in overruling a motion by
defendant to require the plaintiff to elect on which theory
he will stand, is harmless, and a cause will not be reversed
for such ruling.
4. The
measure of damages in an action for breach of warranty of
quality of oats sold for feed for horses, where the oats
contained substances which killed a portion of the horses
made some sick, and permanently injured others, is the value
of the horses killed, the difference in value of the injured
horses before and after the injury, the loss of the use of
the horses while sick, the expense of medical treatment and
medicine, and such other damages as are the natural and
direct consequences of such breach of warranty.
5.
Where a witness testifies that he is acquainted with the
values of livery horses generally, and that he knew the
horses in question, and testified as to their value, it will
be assumed that the market value is meant, unless from the
testimony of the witness it appears that he fixes his values
on some other basis.
6. When
a veterinary surgeon has treated certain horses for disease
caused by eating castor beans, and gives the effect of the
poison on the stomach and digestion of the horses, and is
acquainted with the general effects of such poison on horses,
he may give his opinion as to the permanency of the injury,
and, where he is acquainted with the general values of such
horses, may testify as to the damages occasioned by such
injuries.
Appeal
from district court, Logan county; before Justice Dale.
Action
by Joe Baum against W. H. Coyle and another, partners as
Coyle & Smith. There was a judgment for plaintiff, and order
denying a new trial, and defendants appeal. Affirmed.
BURFORD
J.
This
was an action brought by Joe Baum against Coyle & Smith to
recover damages alleged to have resulted to plaintiff's
horses by feeding oats containing castor beans, which he had
purchased from the defendants. There was a trial by jury, and
verdict for plaintiff for $570. The jury also returned
special findings of fact. Motion for new trial was made and
overruled, and judgment rendered on the verdict. The
defendants bring the case here upon a petition in error. The
amended petition is as follows:
"Joe
Baum, Plaintiff, vs. W. H. Coyle and H. S. Smith, Partners
as Coyle & Smith, Defendants. Comes now the plaintiff, Joe
Baum, in the above-entitled cause, and for his amended
complaint in this cause against the defendants, W. H. Coyle
and H. S. Smith, filed by leave of the court first had,
says that the said defendants are, and have been for more
than one year last past before the filing of this action on
November 5, 1891, partners doing business at Guthrie,
Oklahoma Territory, under the firm name of Coyle & Smith.
That the said defendants have been during said time, and
were on the ___ day of September, A. D. 1891, in the retail
grocery and feed business, and engaged in the furnishing of
groceries and provisions for domestic consumption, and in
the sale and furnishing of hay, oats, corn, chop, and other
provisions for the feed of horses, cattle, and other
animals. The plaintiff further alleges that ever since the
22d day of April, 1889, he has been, and on the ___ day of
September, 1891, he was, engaged in the livery business in
the city of Guthrie, Oklahoma Territory, Logan county, and
in the business of letting horses, teams, and buggies for
hire, and for boarding and keeping the horses of any person
who might apply, for pay. The defendants, Coyle & Smith, at
all times herein alleged, well knew that the plaintiff was
engaged in said business, that the plaintiff had, at divers
and sundry times, and frequently during all times,
purchased of said defendant feed, hay, corn, and oats for
the feed of his horses and his boarding horses in his said
business. That on the ___ day of September, 1891, the
plaintiff purchased of the said defendants 20 bushels of
oats at the agreed price of 35 cents per bushel, for which
the plaintiff made payment to the said defendants, and the
said defendants agreed to furnish for said money so paid by
said plaintiff the said 20 bushels of oats, the said
defendants at the time well knowing that the same was for
the feed of plaintiff's horses, and other horses in his
said livery business, and the defendants were bound to
furnish to the plaintiff good and wholesome oats for his
said feed. Plaintiff further alleges that the said
defendants, instead of furnishing to the plaintiff the said
20 bushels of good and wholesome oats, furnished to the
plaintiff 20 bushels of oats in which castor beans had been
spilled in and among the said oats, through and by the
carelessness and neglect of the said defendants and their
employés in the handling of said oats and castor beans in
their place of business; that the said defendants
and their employés, at the time they were sold and
delivered to this plaintiff, well knew that the said oats
and the said castor beans had been so placed together and
intermingled in their said business that the said castor
beans were liable to be in and were in the said oats, and
that they sold said oats to the plaintiff, as aforesaid,
without apprising the plaintiff of the fact that said
castor beans had been so handled in said business as that
the said beans were in and would be in said oats. The
plaintiff further alleged that he had no knowledge
whatever, at the time of the furnishing of the said oats by
the said defendants to the plaintiff, that the said beans
were in the said oats, and that he relied upon the said
defendants, as he had often done, and as defendants well
knew he was doing, to furnish to the said plaintiff the
said oats in a good and wholesome condition, and suitable
for feed to his said horses, and other horses in his said
business. The plaintiff further alleges that the castor
beans in said oats were a deleterious and poisonous
vegetable substance, and were so scattered through the said
oats that the same were not discovered by the plaintiff at
the time of the purchase of the same, and could not be
discovered without knowledge that the same were in said
oats, and without making an unusual examination of the
same. The plaintiff further alleges that in the due course
of his said business he, without knowing that said castor
beans were in said oats, fed said oats to his and other
horses, in the course of his business, and that thereby his
boarding horses were seriously poisoned; and one of his
boarding horses died from said poison, and three of
plaintiff's horses died from said poison. That by
reason of negligence of said defendants and their servants
and employés as aforesaid, and by reason of the said castor
beans being in said oats as aforesaid, and the facts
therein stated as aforesaid, the plaintiff has been by the
said defendants greatly damaged, in the sum of $964, as
follows, to wit:
Boarding
horse of Moses Weinberger which died from being poisoned by
castor
beans, and which was of the value of
............................ $150
Three
horses of the plaintiff which died from being poisoned by
said
castor
beans, and which were of the value of, each
.................... 75 00
Ten
horses of the plaintiff which were damaged in the sum of $30
each,
total
................................................................
300 00
Doctor's
bill and medicine
.............................................. 39 00
Damage
to the business of plaintiff by his being deprived of the use
of
his livery horses for two weeks, being so poisoned
................... 250 00
$964
"The
plaintiff further alleges that he was not guilty of any
contributory negligence in said cause or matter, and that he
did everything in his power to care for, doctor, and treat...
