Frame v. Hohrman
| Decision Date | 02 December 1949 |
| Docket Number | No. 34971.,34971. |
| Citation | 229 Minn. 468,39 N.W.2d 881 |
| Parties | FRAME v. HOHRMAN. |
| Court | Minnesota Supreme Court |
Burton R. Sawyer, Northfield, for appellant.
James O. Caulfield, Northfield, for respondent.
Appeal from an order of the district court denying defendant's motion for a new trial.
Plaintiff sued defendant to recover damages for a breach of warranty in connection with the sale of four cattle. In his complaint he alleged that on or about July 13, 1947, defendant sold and delivered to him four heifers for $640; that before and at the time of the sale defendant warranted and guaranteed the heifers free and clean of disease; that he purchased the heifers on this representation and warranty by defendant and in reliance upon it; that after the purchase it was discovered and established that the heifers had Bang's disease; that they had it before and at the time of the sale and were not free and clean of the disease as warranted and guaranteed by defendant; that it became necessary for plaintiff to sell the heifers on the market at a loss; and that plaintiff was also damaged by the reduction in the amount of milk obtained from the heifers.
Defendant in his answer admitted the sale, but denied other allegations in the complaint, and for a separate defense alleged that plaintiff requested him to sell the heifers; that he selected the animals himself from defendant's herd; that plaintiff did not rely upon any representation made by defendant; and that if the heifers became infected with Bang's disease they became so infected after leaving the premises of defendant on July 13, 1947.
Plaintiff testified that he first met defendant about July 1, 1947, when he went to defendant's farm, which we shall refer to as the Castle Rock farm, and inspected some cattle which he claimed defendant had advertised for sale; that he asked defendant if he had any Jersey cattle for sale and if they were clean; that the latter told him that he had a clean herd and had never had any trouble with them; that he later returned to the farm on July 13 and bought four Jersey heifers about two years old from defendant's herd of about 70 cattle at $160 each, or a total of $640; that he attempted to select some with ear tags, but that defendant would not sell them, and that between him and defendant they decided on the four he purchased. Plaintiff said that the four heifers he bought had average calves some time between the purchase date and August 1, 1947; that for about three weeks after they "freshened" they produced about 12 gallons of milk a day; and that afterward the cow that later tested as a reactor gave hardly any milk, and the milk supply from the other three gradually declined to four gallons a day at the time he disposed of them.
It further appears from the record that on November 16, 1947, plaintiff had six of his cattle, including the four purchased from defendant, tested for Bang's disease by a veterinarian. Of the four heifers purchased from defendant, the test showed one to be a reactor and the other three to be suspects. Upon the advice of the veterinarian, the four heifers were sold to a meat packer. The reactor was sold about November 20, 1947, and the suspects about December 11, that same year. All were sold at less than the price paid defendant.
Defendant testified that at the time of the trial in June 1948, he was living on the Castle Rock farm; that he had owned the farm for about six years and had personally lived there for about three and one-half years, although his wife and some of his children who were attending school had lived there longer; that prior to the time he moved to the Castle Rock farm he lived on what we shall refer to as the Greenvale farm, about five or six miles south of the Castle Rock farm; and that he was living on the Greenvale farm, which he rented, in 1940, at the time Dr. A. O. Garlie, the veterinarian, tested his herd in June and July of that year. He claims that the herd which he owned while living on the Greenvale farm was entirely disposed of and that none of the cattle from the Greenvale herd were ever brought to the Castle Rock farm. It appears that between some time in 1943 and 1946 defendant also rented another farm, which was operated by his son Ralph, referred to as the Van Slyke farm, located a little south and across the road from the Castle Rock farm, and that he was interested in some cattle on this farm, but he testified that none of the cattle on either the Greenvale or the Van Slyke farms ever mingled in any way with the cattle on the Castle Rock farm. When asked if he ever had had any Bang's disease in his herd on the latter farm, he replied that he had not.
Defendant claimed that his first contact with plaintiff was in the fall of 1946, when plaintiff called at his farm one evening about 9 o'clock, and that there was some discussion then about the sale of cattle, but that nothing was done. He could not recall the exact day plaintiff first came to his place in July 1947, but said that plaintiff and his father came to his farm again on July 13 and that he (plaintiff) was "ready to buy the Jerseys now." He said he informed plaintiff that on account of his physical condition he could not continue to farm and that he would rather sell his cattle at an auction than to sell to plaintiff, because if he had an auction he would have to have a Bang's test, and "I wouldn't have any drawbacks on me." He claimed that plaintiff then said that he would take them without testing; that the latter selected the four heifers involved; and that after some discussion about the price they agreed upon $160 per head. When asked whether he or plaintiff picked out the four heifers, he described how the four were selected from the herd and said in effect that they were selected more by plaintiff than by him. The cattle were delivered to plaintiff's home that day, and some time after that he met plaintiff on the street in Northfield and the latter told him that the heifers each had calves. He then said that sometime around October plaintiff again came to his home, and he quoted plaintiff as saying, "I am coming back to buy some more of your heifers," and that plaintiff talked about getting 13 gallons of milk a day from the four cows he had previously purchased. He explained that he had some talk that day with plaintiff about having adopted a plan a long time before for the vaccination of calves and that he vaccinated calves from four to eight months old under this plan. He said that after they were vaccinated they were kept on the premises from a year to 18 months and that he had vaccinated about 19 calves between the ages mentioned. On direct examination, he indicated that plaintiff talked to him about buying some of these vaccinated heifers, but on cross-examination said that plaintiff was not interested in the 19 calves. He admitted that plaintiff again called at his place after plaintiff had had the four heifers tested, and that plaintiff told him that he had had bad luck with the cattle he purchased, as the test showed that they had Bang's disease.
On cross-examination, defendant admitted that his son Ralph had sold some cattle to one Sherman Brown, but not from the Castle Rock farm. He admitted that Brown claimed that he contracted undulant fever from the cattle, and when asked if the buyer got his money back defendant said:
Defendant further testified that the herd of cattle on his farm on July 13, 1947, the date plaintiff purchased the four heifers, had been there for about four years, and that it had been started from all tested cows which he bought in the country and at auctions.
Ralph Hohrman, aged 31 years, testified that he had resided on the Van Slyke farm for about two and one-half years prior to the spring of 1946, at which time he gave up possession and moved to the home (Castle Rock) farm; that there was a herd of cattle on the Van Slyke farm which he took care of and that this herd was completely disposed of when possession of the Van Slyke farm was relinquished; that none of these cattle were ever taken over to the Castle Rock farm across the road and that none of the herds on these two farms ever mingled; that he was present on July 13 when plaintiff bought the cattle; that after some dickering about the price and some discussion about tests plaintiff bought the four without a test, provided they would be delivered that night, which was done; that plaintiff selected the heifers out of the herd himself; and that plaintiff came back to the farm again in October and said that the cows were "doing fine and giving around 13 gallons of milk a day, and they wanted more just like that." Ralph indicated at that time plaintiff wanted to buy some of the vaccinated calves, but that they would not consider selling them. He said that Sherman Brown got his cattle from the herd disposed of when he relinquished the Van Slyke farm in the spring of 1946.
Dr. Garlie, the veterinarian who conducted the tests on plaintiff's cattle on November 16, testified, over defendant's objection as to the results, that he had made two tests for Bang's disease on defendant's herd in 1940 and another test on four of defendant's cattle in December 1947; that the first test he made on defendant's herd, on June 3, 1940, showed 69 animals to be negative, 28 reactors, and 10 suspects; and that the next test, made on July 2, 1940, disclosed 56 negative animals, 12 reactors, and 8 suspects. The last test made December 2, 1947, was...
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