Eversole v. Hanna

• Decision Date: 23 November 1914
• Docket Number: No. 11265.,11265.
• Citation: 184 Mo. App. 445,171 S.W. 25
• Parties: EVERSOLE et al. v. HANNA.
• Court: Missouri Court of Appeals

171 S.W. 25

184 Mo. A. 445

EVERSOLE et al. v. HANNA.

No. 11265.

Kansas City Court of Appeals. Missouri.

November 23, 1914.

1. SALES (§ 417) — REMEDIES OF BUYER — EVIDENCE.

In an action for breach of contract to sell plaintiff a certain quantity of pure milk each day, evidence held sufficient to warrant a finding that the impurity of the milk was caused

solely by the wrongful or negligent acts of the defendant and not by the acts of plaintiff.

2. SALES (§ 273) — WARRANTY — FITNESS FOR PURPOSE.

Where defendant sold a dairy route to plaintiffs and agreed to sell them a certain quantity of pure milk each day, knowing that it was to be sold to the customers, he impliedly warranted that the milk would be reasonably suitable for that purpose.

3. SALES (§ 288) — WARRANTIES — BREACH — WAIVER.

The fact that plaintiffs continued to accept milk from the defendant did not waive the breach of warranty that the milk should be pure, since they had the right either to rescind the contract or to keep the milk and recover the difference between its actual value and its value if it had been as warranted.

4. SALES (§ 430) — WARRANTIES — ACTIONS FOR BREACH — DEFENSES.

It was no defense to an action for breach of a contract to sell plaintiff pure milk that plaintiffs attempted to dispose of the unfit milk to their customers.

5. SALES (§ 442) — REMEDIES OF BUYER — BREACH OF WARRANTY — MEASURE OF DAMAGES.

The measure of damages for breach of warranty in a contract for the sale of milk is the difference between the market value of milk of the kind and quantity furnished and the market value of pure milk of the same quantity at the same time.

6. SALES (§ 418) — BREACH OF CONTRACT — EXCESSIVE DAMAGES.

Where defendant furnished to plaintiff, a dairyman, under a contract for the delivery of pure milk at an agreed price of 17½ cents per gallon, 40 gallons per day of impure milk for a period of 4 months, which milk was not worth more than 2 cents per gallon, and as a result of selling such milk plaintiff lost numerous customers, who had been taking a total of 15 gallons of milk daily, a verdict for $500 damages was not excessive.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

Action by S. G. Eversole and another against Fred Hanna. Judgment for the plaintiffs, and defendant appeals. Affirmed.

J. E. Heffley, of St. Joseph, for appellant. B. G. Voorhees, of St. Joseph, for respondents.

JOHNSON, J.

This is an action for breach of a written contract entered into April 1, 1913, by the terms of which defendant, a dairyman, sold plaintiffs a dairy route in St. Joseph and certain personal property employed in the business for $450, and agreed to sell plaintiffs "50 gallons of pure milk per day until March 1, 1914, at 17½ cents per gallon." Plaintiffs paid $300 on the purchase price and executed and delivered to defendant their promissory note for the remainder, due March 1, 1914, and secured by a chattel mortgage on the property. There were 85 customers on the route, and together they purchased about 35 gallons of milk daily, which was sold at the rate of 14 quarts for $1. Plaintiffs lived on a little farm near the city limits and kept a few milch cows, from which they obtained four or five gallons of milk each day. After purchasing defendant's route they sold the milk they procured from their own cows in bottles, and that purchased from defendant was sold out of five and ten gallon cans. Defendant had a dairy farm in the country a mile or more from the residence of plaintiffs, and delivered to plaintiffs the milk from morning milkings, transferring it from his wagon to theirs just before the latter started on its morning trips to retail customers. Plaintiffs went to defendant's dairy for the milk procured in the evenings, a part of which they delivered the same evening to customers. They placed the cans containing the remainder, which was to be delivered the next morning, in a concrete basin, filled with water, to keep the milk cool and fresh. The basin was inclosed by a...