Dale v. Pierson-Brewen Commission Co.

• Decision Date: 09 January 1912
• Citation: 142 S.W. 745,160 Mo. App. 314
• Parties: DALE v. PIERSON-BREWEN COMMISSION CO.
• Court: Missouri Court of Appeals

142 S.W. 745

160 Mo. App. 314

DALE v. PIERSON-BREWEN COMMISSION CO.

Kansas City Court of Appeals. Missouri.

January 9, 1912.

1. SALES (§ 273)—IMPLIED WARRANTY—FITNESS FOR SPECIAL PURPOSE.

The rule that property purchased for a special purpose is impliedly warranted to be fit therefor applies to live stock, and such an implied warranty is breached where ewes sold for breeding purposes were afflicted with a mouth and foot disease dangerous and contagious.

2. SALES (§ 288)—IMPLIED WARRANTY—OBVIOUS DEFECTS—WAIVER OF BREACH.

Where the disease of sheep, indicated by sore mouth and feet, was obvious and was discovered by the buyer, but he did not know that it was dangerous and contagious, and was assured by the seller that the sheep were all right, and he bought them for a special purpose, there was a warranty of fitness not avoided by the obvious nature of the disease on account of the fraudulent representations.

3. SALES (§ 269)—IMPLIED WARRANTY—CAVEAT EMPTOR—OBVIOUS DEFECTS.

The sale did not fall within the rule of caveat emptor.

4. SALES (§ 285)—IMPLIED WARRANTY—NECESSITY OF RETURN.

Where sheep sold under an implied warranty of fitness for a special purpose were found diseased, it was not necessary that the purchaser give the seller notice and offer to return the property, but he might keep the sheep and sue for his damages.

5. FACTORS (§ 66)—LIABILITY OF AGENT— DISCLOSURE OF PRINCIPAL—QUESTION FOR JURY.

On a sale of sheep by commission men, the words, "Owner M. and G.," on the weight-house ticket were not sufficient to justify the court as a matter of law in holding that the seller had disclosed the ownership of the sheep; but it was a question for the jury.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Charles Dale against the Pierson-Brewen Commission Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Adrian F. Sherman and W. V. Tompson, for appellant. Thurmond & Farrar, for respondent.

BROADDUS, P. J.

This is a suit on an alleged warranty. For convenience we adopt in part appellant's statement of the case, to wit: "This action was brought to recover $776.36, $526.36 of which was for damages alleged to have resulted from a breach of warranty as to a certain lot of sheep, and the further sum of $250 as damages for infection of certain pasture wherein said sheep were confined. A demurrer to plaintiff's evidence was sustained. The evidence discloses the following state of facts: One Charles Dale, a farmer, living near Weston, Mo., desiring to purchase a number of sheep, came, on or about July 29, 1909, to Kansas City, Mo., and went down to the stockyards and approached one W. T. McIntire, a representative of the firm of Pierson-Brewen Commission Company, and stated to him that he wanted to buy a double-deck car load of sheep, which said sheep he desired to take to his farm near Weston, and that he wanted about 100 ewes for breeding purposes and the balance to fatten for the market. Mr. McIntire replied that he had just the sheep he (Mr. Dale) wanted, and thereupon took Mr. Dale over and showed him the sheep in question. Mr. Dale called the attention of Mr. McIntire to the fact that there were some sore mouthed sheep in another bunch which were being offered to him to fill out his carload, whereupon Mr. Intire took Mr. Dale around the yards and showed him several bunches of sheep which had sore lips and said it didn't amount to anything; further, it was a condition prevalent among sheep in the yards at that time of the year, and was caused from sand burrs being in the hay, or by change of food; that it did not amount to anything; that the sheep were all right. So Mr. Dale, relying upon the representations and assurances of Mr. McIntire, purchased the said sheep and as consideration therefor paid, by check to the Pierson-Brewen Commission Company, the sum of $729.86, being the fair market value of good sound sheep for the purpose stated, and loaded them into a car and took them to his farm near Weston, and placed them on pasture. On the road home Mr. Dale noticed that some of them had sore mouths, and after some four or five days they began dying...