Eisenbarger v. Wilhite

• Decision Date: 30 January 1922
• Docket Number: No. 14005.,14005.
• Citation: 238 S.W. 159
• Parties: EISENBARGER v. WILHITE.
• Court: Missouri Court of Appeals

238 S.W. 159

EISENBARGER v. WILHITE.

No. 14005.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Certiorari Denied by Supreme Court March 16, 1922.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by W. M. Eisenbarger against J. R. Wilhite. Judgment for plaintiff, and from an order granting a new trial plaintiff appeals. Reversed and remanded, with directions.

Charles H. Gilbert of Nevada, Mo., and Guthrie, Conrad & Durham and Hale louts, all of Kansas City, for appellant.

Clarence L. Hogin and Ball & Ryland, all of Kansas City, for respondent.

ARNOLD, J.

This action was instituted by plaintiff for damages for breach of warranty in the sale of two droves of sheep, consisting of about 300 head each, alleged to have been purchased of defendant about the 1st day of October, 1917, one bought by plaintiff for himself and the other for one Turner, of whose cause of action plaintiff is assignee.

The petition is in four counts, the first two covering the sheep bought by plaintiff for himself, and the other two covering sheep bought for Turner. Counts 1 and 3 charge express warranty, and counts 2 and 4 charge implied warranty. At the close of all the evidence plaintiff dismissed counts 1 and 3 and the case was submitted on counts 2 and 4, setting up implied warranty. The allegations of counts 2 and 4, except as to the party purchasing, were similar, each alleging that a purchase price of $2,201.05 was paid; that this was the market value of the sheep on the date of the purchase; that the sheep were purchased for the special purpose of breeding the females and fattening and reselling the males on the market; that at the time of the sale defendant was informed by the buyer of the special purposes for which the sheep were being bought, and that defendant understood they were being purchased for said purposes, and that, in so selling said sheep, defendant, by implication, warranted they were suitable therefor, and that plaintiff, relying upon said implied warranty, bought the sheep for himself and the said Turner.

Further it Is alleged that said sheep were wholly unfit for said Special purposes, in that they were infected and diseased with a malignant, infectious, and contagious disease known as "lip and limb" or "foot and mouth" disease, and that during their shipment to the farms of plaintiff and his assignor at Mountain View, Mo., and after their arrival there, large numbers of them died, to wit, all except 19 of plaintiff's drove, and 120 of those of plaintiff's assignor.

Damages were alleged in the second count in the sum of $3,564.71, which said sum included the value of the sheep lost, the amount expended in freight, the value of other stock to which the disease is alleged to have been communicated and which died thereof, and the expenses incurred, including medicine, veterinary fees, feed, and labor incident to treatment of, and effort to save, the diseased sheep. Damages alleged in the fourth count are in the sum of $2,151.80, which includes like items as in count 2, except that no stock is claimed to have been lost except the sheep in question.

The answer is a general denial. The case was tried to a jury, and verdict was returned for plaintiff upon the second count for $2,200 and for $1,000 on the fourth count. Judgwent was entered for the total sum of $3,200. Thereafter the court sustained a motion for a new trial on behalf of defendant, specifying as grounds therefor that it had erred in refusing to give defendant's peremptory instruction offered at the close of all the evidence. From the order granting a new trial plaintiff appeals.

The evidence on behalf of plaintiff is that plaintiff and one Turner, in the fall of 1917, were farmers living near Mountain View, Howell county, Mo., each owning a farm of about 160 acres. The two agreed to purchase about two carloads of sheep for pasturing on their farms and the adjacent open range. It was agreed between them that in order to save expenses plaintiff should buy for both parties; Turner relying upon plaintiff's judgment.

Pursuant to this arrangement plaintiff went to Kansas City about September 20 or 27, and at the stockyards met one Morgan, a salesman for a commission firm not involved in the present action, who had no sheep answering the requirements, but who took him to some pens containing the sheep in question, and introduced him to one Logan stating: "Here is a man who will show you some sheep." Plaintiff looked at the sheep, and they were priced to him by Logan at $8 per head. Plaintiff did not then buy them, but went on to the state of New Mexico, where he failed to find sheep that suited him. He then returned to Kansas City on September 20, 1917, and again saw Logan, who at this time priced the sheep at $7.50 per head for the entire lot, consisting of 587 head. Plaintiff remarked to Logan that the sheep were "awful thin," and asked if they were in good healthy condition. Logan said they were, and stated that their condition of thinness was due to the fact that they came off of the drouth-stricken district of New Mexico. Plaintiff then said to Logan, "I have a notion to take them," and stated that his intention was to buy thin sheep and run them on the pastures for 30, 60, or 90 days, fatten them, and turn them back. Then Logan advised that— "They would make you more money to keep them a year or two for breeding purposes, and get a crop of lambs off of them and ship them back here next fall. The chances are the sheep will bring you as much money as you are giving now, and you will have the lamb and a crop of wool for profit."

The market price of sheep on that day was $7.50 per head, as testified to by salesman Morgan. Plaintiff testified that neither at this time nor on the former occasion had he noticed that any of the sheep were diseased. Logan then said to plaintiff:

"Let's go up to the office, and Mr. Wilhite and you can fix up for them. I will dip them for you."

Logan and plaintiff then went to the office of defendant Wilhite in the Live Stock Exchange Building, and found two men in the office, one of whom Logan introduced to plaintiff as Wilhite. Plaintiff identified defendant in the courtroom as the man to whom he had been so introduced. Logan then stated to defendant:

"This man wants that bunch of sheep down there and you close up with him. I will go and dip the sheep."

Settlement for the sheep was made with defendant, the latter agreeing to accept a check of plaintiff. Defendant handed a blank check to plaintiff, and defendant proceeded to figure up the amount the sheep would come to. Plaintiff stated to defendant that he had about concluded to keep the sheep for breeding purposes; that his intention had been to fatten them out for 60 or 90 days and then ship them back, but that Mr. Morgan and Mr. Logan had told him the sheep would make him more money to keep them over the year and get the crop of lambs and ship them back in the fall. Defendant replied, "They ought to make you some good money that way." Defendant made out the check which plaintiff signed and gave back to him, and defendant gave plaintiff a bill of sale. The said check with indorsements was identified and offered in evidence; also the bill of sale, which reads as follows:

"Kansas City, Missouri, Sept. 29, 1917. "M. Turner and I bought of J. R. Wilhite, live stock dealer, 763 Live Stock Exchange. Bell Phone 6179 Main.

                 Cattle.    Weight.   Price.    Amount
                687 sheep             $7.50    $4402.50."
                

Logan then returned to Wilhite's office and took plaintiff to the office of the Frisco Railroad, where arrangements were made for the shipment of the sheep to Mountain View. On the following day, while en route, the sheep were unloaded at Springfield, Mo., to comply with the federal statutes (U. S. Comp. St. §§ 8651-8654) relative to confinement of stock in transit. The sheep then were reloaded and proceeded to Mountain View, where they arrived the second morning, and were unloaded and divided; plaintiff taking 294 of the lot and Turner 293.

Plaintiff states that on the way I to his farm, and about four miles from town, four of his sheep died, and that thereafter they continued dying at intervals, and on June 1, 1918, all but 19 of his lot had died. It is shown that both plaintiff and Turner had good grass on their farms where they placed the sheep, and that both had built new sheds for the protection of the animals.

By skinning the dead animals it was disclosed that the forelegs were bloodshot clear to the body, and "yellow corruption" gathered thereon. There was swelling between the toes, and strings of matter could be drawn therefrom, sometimes 10 inches long, and that there would seem to be a separation where the hair joined the hoofs. A veterinary surgeon was called, whose treatment consisted in standing the sheep in a disinfecting solution and cauterizing their lips and noses, which were found to be sore. Turner lost 120 out of his 293 head. He testified that—

His sheep would "get lame, heads would swell up, Mid I would find one dead every morning or two. The mouth would get sore and they would not eat."

Turner treated his sheep by feeding them sulphur and salts and burned salt, and painted their mouths with iodine, and applied a carbolic acid solution to their feet, as advised by the veterinarian.

Dr. Miller, the veterinarian employed by plaintiff,. testified that in his opinion the disease was infectious, and in answer to a hypothetical question, stated that in his opinion it might have been contracted by the sheep, or been in them at the stockyards before they were shipped to Mountain View. He stated that from his observation it required about 10 days for the disease to run its course, and that, in his opinion, the sheep could not have begun dying before they reached Mountain View, had they contracted the disease at Springfield.

On behalf of defendant, Dr. Harry B. Adair...