Doden v. Housh, 49982
| Decision Date | 20 September 1960 |
| Docket Number | No. 49982,49982 |
| Parties | John DODEN, Appellee, v. Charles N. HOUSH, d/b/a Forest City Auction Company, and E.R. Doane, Appellants. Raymond BARNES, Appellee, v. HOUSH et al., Appellants. Harm FREESEMANN, Appellee, v. HOUSH et al., Appellants. |
| Court | Iowa Supreme Court |
Boyle & Schuler, Clear Lake, and B.C. Berge, Garner, for appellants.
Finley & Teas, Mason City, for appellees.
Each plaintiff brought an action against the defendants to recover damages for breach of warranty of fitness of feeder pigs purchased by plaintiffs from defendants at public auction. Defendant Charles N. Housh is the owner and operator of a livestock sales barn known as the Forest City Auction Company, Forest City, Iowa. Defendant E.R. Doane sold the feeder pigs through the sales barn at public auction. The pigs had been purchased by him in Oklahoma and trucked to the barn for the auctions.
Plaintiff John Doden, a farmer engaged in general and livestock farming, purchased 102 feeder pigs at the auction held December 12, 1956. The pigs showed signs of illness on the 15th. Doden called a veterinarian, treatment was administered. Ninety-two of the pigs died within a month.
Plaintiff Raymond Barnes, a livestock and grain farmer, purchased 31 pigs at the auction January 2, 1957. The pigs started getting sick within a day or two. He called a veterinarian January 17th. By February 19, 1957, 29 of the pigs died.
Plaintiff Harm Freesemann, a farmer, purchased 30 feeder pigs at the auction January 2, 1957. The pigs started getting sick the eighth or ninth day. At that time a veterinarian was called. Within a month all of the pigs had died.
The cases were consolidated for trial and are so presented here. The petitions of each plaintiff are identical except for dates of purchases, number of pigs, and amounts claimed. Each contained a division on the theory of express warranty and implied warranty. The cases were submitted to the jury on the theory of implied warranty only. A verdict was returned for each plaintiff and judgments entered accordingly.
Defendants appeal, urging three major propositions for reversal.
I. The first proposition urged by defendants is the rule of caveat emptor applies to the sales before us and an implied warranty of fitness does not arise. Our rule has been recently very clearly stated in Ver Steegh v. Flaugh, Iowa, 103 N.W.2d 718, filed June 14, 1960. At the time this case was argued able counsel for defendants of course did not have the benefit of the Ver Steegh opinion.
Starting on page 725 of 103 N.W.2d the Ver Steegh opinion holds (in the case of a sale of a boar for breeding purposes): "The applicable law is found in the Uniform Sales Act, chapter 554, Codes 1954, 1958, I.C.A., enacted by the 38th General Assembly in 1919. Section 554.16 provides: * * *.
"Section 554.77 says, ' "Goods" includes all chattels personal other than things in action and money.' "
At page 727 of 103 N.W.2d we state in the Ver Steegh opinion, "It is clear there may be an implied warranty of reasonable fitness of an animal notwithstanding the seller's lack of knowledge that it does not comply with the warranty and notwithstanding the difficulty of discovering this fact."
The Sales Act makes no distinction between sales at public auction and other sales with respect to warranty of fitness. The act also provides the answer for defendants' contention implied warranty does not apply to an executed contract of sale. Section 554.16 provides: " * * * of goods supplied under a contract to sell or a sale." "A sale" is an executed contract of sale.
Feeder pigs, those sold to be fed to marketable weight, are included in the provision of section 554.16, " * * * any particular purpose * * *," as well as animals sold for breeding, dairying or work purposes. Tuttle v. Bootes Hatcheries & Packing Co., D.C.Minn.1953, 112 F.Supp. 705, 709 (); Stanton v. Shakofsky, 2 Ill.App.2d 527, 119 N.E.2d 812; Ver Steegh v. Flaugh, supra; and Annotation, 53 A.L.R.2d 892.
As pointed out in Ver Steegh v. Flaugh, supra, the older decisions before the adoption of the Uniform Sales Act applying the rule of caveat emptor are not applicable to cases like these governed by the Act.
II. Defendants contend plaintiffs have failed to plead and prove a case of implied warranty under section 554.16, subd. 1. We will first consider their question on pleading. They say plaintiffs have failed to comply with rules 93 and 94, Rules of Civil Procedure, 58 I.C.A. Rule 93 provides:
"A claim in derogation of general law, or founded on any kind of exception, shall be so pleaded as to set forth such claim or exception."
In pertinent part section 554.16 is as follows: "Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty * * * except as follows: * * *." There then follow six separate paragraphs setting out the circumstances under which there may be an implied warranty and limitations thereon. As pointed out by the able trial court this is not a statement of a true exception. It is a statement of the application of implied warranties and as such is a statement of general law. The provision could have been written in reverse with identical effect. If this is an exception, which we do not hold, the petitions clearly set forth a claim of breach of an implied warranty.
If we understand defendants' claim relative to rule 94, it is plaintiffs have failed to designate the statute by the section number. Rule 94 provides:
Here again the trial court has provided the answer. In its ruling its states such question should be raised by motion directed to the pleadings and not for the first time at the close of plaintiffs' evidence in a motion for directed verdict. An examination of plaintiffs' petitions discloses an action for breach of an implied warranty. We are certain able counsel for defendants were in no way misled. That the designation of the statute may take place at the pretrial conference, see Advisory Committee Comment, Vol. 1, Cook's Iowa Rules of Civil Procedure, page 620.
III. In passing on the sufficiency of the evidence to submit the cases to the jury we view the evidence in the light most favorable to plaintiffs. They are entitled to all reasonable inferences to be drawn therefrom. There must be substantial evidence in support of their theory of the case. There is more than ample evidence to sustain plaintiffs' causes of action in relation to the breach of the warranty and defendants knew by implication the purpose for which the feeder pigs were purchased.
Each plaintiff testified his pigs became sick within three to nine days after the sales and died within a month to six weeks. In addition there is testimony of a practicing veterinarian in each case giving his opinion as an expert based on observation and treatment the pigs were infected on the day of sale with the disease causing death. Ver Steegh v. Flaugh, Iowa, 103 N.W.2d 718, 725; and Passcuzzi v. Pierce, 208 Iowa 1389, 227 N.W. 409.
Defendants both testified the purpose of purchasing feeder pigs is to feed them for market. The act of bidding on feeder pigs indicates the purpose. Defendants do not seriously contend otherwise. 77 C.J.S. Sales § 325b, p. 1180.
IV. Defendants vigorously urge there is not substantial evidence plaintiffs relied upon the skill and judgment of defendants in purchasing the pigs. The evidence shows defendant Housh, operator and owner of the sales barn, is the agent and factor for an undisclosed principal, def...
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