Fite v. Mcentyre

• Decision Date: 08 July 1948
• Docket Number: No. 31925.,31925.
• Citation: 49 S.E.2d 159
• Court: Georgia Court of Appeals
• Parties: FITE. v. McENTYRE.

49 S.E.2d 159

FITE.

v.McENTYRE.

No. 31925.

Court of Appeals of Georgia, Division No. 2.

July 8, 1948.

Rehearing Denied July 29, 1948.

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Syllabus by the Court

There was no error requiring the grant of a new trial, in the various rulings and instructions excepted to (and stated at length in the opinion of the court, infra); and the evidence authorized the verdict.

Error from Superior Court, Gordon County; J. H. Hawkins, Presiding Judge.

Action by Hilary McEntyre against G. C. Fite to recover damages for alleged breach of implied warranty under statute that 74 hogs purchased from defendant were merchantable and reasonably suited to the use intended. To review judgment for plaintiff, the defendant brings error.

Affirmed.

The plaintiff, Hilary McEntyre, entered suit for damages against the defendant, G. Carlton Fite, alleging as the cause of his damages the breach of an implied warranty under Code, § 96-301(2), that 74 hogs purchased from the defendant were merchantable and reasonably suited to the use intended. The defendant demurred to the original petition, which demurrer was sustained in part and overruled in part; and the plaintiff amended to meet the criticisms of the demurrers which were sustained, the defendant filing exceptions pendente lite to the demurrers which were overruled. Proceeding regularly, the case came on to trial in the Gordon Superior Court before the judge and a jury on the petition as amended; and the trial resulted in a verdict for the plaintiff, with judgment entered in accordance therewith. Within the time required by law the defendant filed a motion for a new trial on the general and eight special grounds, which motion was overruled, and he excepted. The defendant here assigns as error the judgment of the trial court in overruling three grounds of his demurrer and in overruling his motion for a new trial.

The essential allegations of the petition, as amended, were in substance as follows: (1) that the defendant is subject to the jurisdiction of the court; (2) that the defendant injured and damaged the plaintiff in the sum of $4640.00 by reason of the following facts; (3) that on December 10, 1945, plaintiff purchased from defendant 74 hogs at $13.50 per head, or a total sum of $999.00; (4) that the sale was without express warranty, but the hogs were purchased upon the warranty implied by law that they were merchantable and reasonably suited to the use intended; (5) that at the time of delivery of the hogs by defendant to plaintiff, the hogs, or some of them, were infected with some kind of contagious and deadly disease, the name of said disease being unknown to petitioner, and were unfit for the use intended; however, the disease had not developed to the extent that it was apparent upon or could have been discovered by inspection, and the defect was latent; (6) that one of the hogs purchased from the defendant died on December 11, which was the next day after said hogs were delivered to the home or farm of the plaintiff, and that two days later about one-fourth of said hogs were sick from said infectious and contagious disease and unable to get upon their feet and two died on December 15; that thereupon plaintiff went to the defendant and reported said sickness to him and defendant prescribed medicines and treatment for the hogs and sold to the plaintiff medicines for the treatment of the disease, which remedies were administered by the plaintiff, but the treatments were of no avail; that the hogs continued to die each day thereafter in spite of the treatments until 60 of them had died; and that the hogs died from two to five a day, the exact number and date said hogs died being unknown to the plaintiff for the reason that he did not keep a record of the day and number that died, but all of them died between December 11 and January 28, 1946; that the hogs which so died were purchased from the defendant at $13.50 per head for a total of $810.00; (7) that the plaintiff is engaged in the business of raising hogs for the market, and, at the time of the purchase of said hogs from defendant, had on hand at his farm a large herd of hogs and valuable brood sows which were in good health and condition at that time; (8) that upon learning that the hogs plaintiff had purchased from defendant were infected with disease, the plaintiff isolated them and separated them from his herd in an effort to prevent the spread of the disease to his herd; but in spite of the efforts of the plaintiff in taking every reasonable precaution to keep his herd from becoming infected with the contagious and deadly disease, they did become infected; that the hogs owned by the plaintiff began to show the same signs of disease and illness as the hogs plaintiff purchased from the defendant about January 1, 1946, and said hogs began to die on January 5, 1946; that the exact number of said hogs that died each day is unknown to petitioner as he kept no record of the date and number of hogs that died each day, but that by January 26, 1946, five brood sows weighing between 650 and 750 pounds each and 95 other hogs of the approximate weight of 150 pounds each had died; that the reasonable market value of these hogs was $3,330.00 in addition to the 60 hogs purchased from the defendant; (9) that petitioner did all that he could to save said hogs by doctoring them, employing veterinarians, purchasing medicines, and, as fast as the hogs died, burying the carcasses to prevent spread of the disease, and by transporting carcasses of dead hogs to Atlanta, Georgia, to the laboratory of the State Veterinarian's Office for examination, to a total expense of $500.00, thus making a total loss and damage to petitioner in the sum of $4,640.-00, the amount sued for; and that attached to the petition is an itemized statement of all the expenses incurred by the plaintiff on account of the death and disease of the hogs, which is marked as Exhibit A and made a part of this paragraph; (10) that the sole proximate cause of the plaintiff's loss and damage was brought aboutby defendant selling him said infected and diseased hogs, and that on account thereof, defendant has injured and damaged plaintiff in the full and complete sum aforesaid; and (11) that defendant has failed and refuses to pay said damages, although a demand for payment has been made upon him by the plaintiff before the filing of this suit.

The grounds of the defendant's demurrer which were overruled are substantially as follows: (1) the petition fails to set forth any cause of action against the defendant; (2) the allegations of paragraph five of said petition are demurred to for that the same are mere conclusions of the pleader, and plaintiff should be required to set forth the alleged infectious and contagious disease with which said hogs were alleged to have been infected, so as to put this defendant on notice of what his claim is with reference thereto; it being alleged in paragraph 9 of said petition that veterinarians were employed to treat the hogs and the plaintiff seeking recovery of additional damages against defendant for this reason, he should therefore be required to allege what the disease was so as to put this defendant on notice in order that he might investigate and defend this suit; and (3) paragraph 6 is demurred to for that the same is immaterial and irrelevant, it not being alleged therein that the hog that is alleged to have died on December 11, 1945, died from any alleged infectious or contagious disease that plaintiff claims that the other hogs died from; and if he seeks to hold defendant liable for the death of said hog, he should be required to allege what caused its death.

R. F. Chance, of Calhoun, for plaintiff in error.

Y. A. Henderson and Henry L. Barnett, both of Calhoun, for defendant in error.

MacINTYRE, Presiding Judge.

1. The petition in the instant case, while it may not be perfect or free from defects which might have been taken advantage of by a special demurrer based upon the proper grounds, is not subject to a general demurrer. The action is essentially one for the breach of an implied warranty in law under Code, § 96-301(2), which is: "If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants that --* * * 2. The article sold is merchantable, and reasonably suited to the use intended." The effect of a breach of the warranty provided by this section is set out in Code, § 96-306, as follows: "A breach of warranty, express or implied, shall not annul the sale if executed, but shall give the purchaser a right to damages. * * * " In Snowden v. Waterman & Co., 100 Ga. 588, 589, 28 S.E. 121, it was said: "The seller of personal property, in all cases, unless expressly or from the nature of the transaction excepted, warrants: * * * second, that the article is merchantable, and reasonably suited to the uses intended. * * * [Code, § 96-301] each clause in the section cited provides for a separate and distinct warranty, and a breach of any one is a breach of the implied warranty of the law. * * * If the article is totally worthless and useless, and the buyer, in the exercise of ordinary care, could not detect the defect, then there is a breach of warranty under the second clause, and this, too, when the seller was ignorant of the existence of the defect which caused the article to be of no value. * * * The petition, before it was amended, in effect alleged that the article sold was not merchantable, and was not reasonably suited to the use intended, and was 'wholly and utterly worthless.' Therefore the court committed no error in overruling a general demurrer thereto."

When the same case was again before the Supreme Court of Georgia, Snowden v. Waterman & Co., 105 Ga. 384, 385(4), 387, 31 S.E. 110, it was further stated: "Where one purchases a lot of mules, some of which are...