Gadberry v. Bolton

• Decision Date: 06 June 1922
• Docket Number: No. 17185.,17185.
• Parties: GADBERRY v. BOLTON.
• Court: Missouri Court of Appeals

242 S.W. 688

GADBERRY v. BOLTON.

No. 17185.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from Circuit Court, Montgomery County; E. S. Gantt, Judge.

"Not to be officially published."

Action by W. C. Gadberry against W. W. Bolton. From a judgment for plaintiff, defendant appeals. Affirmed.

T. W. Hukriede, of Warrenton, A. H. Drunert, of Jonesburg, and W. C. Hughes, of Montgomery City, for appellant.

Glover E. Dowell and Emil P. Rosenberger, both of Montgomery City, for respondent.

BRUERE, C.

This is an action of fraud and deceit growing out of the sale of 30 head of calves by defendant, appellant, to plaintiff. The petition, in substance, charges that plaintiff purchased the calves from defendant, and that the defendant at the time of the sale and—

"in order to induce plaintiff to buy said calves, represented that the calves were well and all right; that they had just laid over in St. Louis one day, and that they were calves formerly belonging to Dick Norton, and had come from Dick Norton's island at Ellsbury, Mo.; * * * that the aforesaid statements and representations made by defendant to plaintiff were false and fraudulent, and that when defendant made said statements and representations the defendant well knew the same to be false and fraudulent, and that defendant made said statements and representations for the sole purpose of inducing plaintiff to purchase of defendant his said calves; that plaintiff relied on the said statements and representations, and believed them to be true, and was deceived thereby, and was induced thereby to purchase of defendant said calves for $900."

The petition further avers:

"That in truth and in fact, when plaintiff purchased said calves, they were not all right, and were not well, but, on the contrary, were sick and diseased; that in truth and in fact said calves did not formerly belong to Dick Norton, and had not come from Dick Norton's island at Ellsbury, Mo., and in truth and in fact said calves were calves that had come from some Western or Northern state, and had been shipped from Omaha to the stockyards at St. Joseph, Mo., and were offered for sale, and after being rejected for sale there had been sent to the stockyards at East St. Louis, Ill., and had been there for some time before being purchased by defendant; and that said calves, while thus being transported and confined in the several different stockyards, had contracted a contagious and infectious disease, all of which facts were fully known to the defendant when he made the aforesaid statements and representations concerning said calves to plaintiff, or might have been known by the exercise of ordinary care on the part of the defendant, when he was inducing plaintiff to buy his said calves."

The petition further states that after plaintiff purchased said calves from defendant he took them to his farm, and thereafter discovered that said calves were sick and diseased, and that, notwithstanding he gave them the best care and attention, eight of said calves died, to plaintiff's damage in the sum of $240, and that plaintiff was compelled to expend $40 for veterinary services, and that he was required to expend the sum of $220 for extra feed in curing the calves that did not die; that some of plaintiff's other cattle became sick and infected with the disease, and that thereby plaintiff suffered an additional damage of $250; and that, by reason of the said fraud practiced upon him by the defendant, plaintiff suffered damages in the sum of $750, for which sum judgment is asked against defendant.

The answer was a general denial.

There was a verdict and judgment in favor of the plaintiff for the sum of $450, and the defendant appealed. The record brought here does not contain any abstract of the evidence in this case.

The abstract of the record brought here sets out the bill of exceptions, but the bill of exceptions does not contain any abstract of the evidence adduced upon the trial; the only reference made therein to said evidence being as follows:

"There was evidence tending to prove the allegations of the petition."

The sole error assigned relates to an instruction given for the plaintiff. Said instruction reads:

"The court instructs the jury that if you find and believe from the evidence that defendant, for the purpose of inducing plaintiff to purchase the calves in question, told the plaintiff that said calves were sound and all right, and that they had just laid over in St. Louis one day, and that said calves formerly belonged to Dick Norton, and had come from Norton's Island, and if you further find that said statements, if made, were false and untrue, and that defendant, at the time he made said statements, if he did make them, either knew them to be false and untrue, or made said statements as a fact without knowing whether true or untrue, and if you further find and believe from the evidence that said calves at the time of the sale in question were not sound and all right, and that defendant knew or had good reason to believe that said calves were not sound and all right, and if you further find and believe from the evidence that plaintiff believed said statements made by defendant to be true, if you find defendant did make said statements, and that plaintiff relied on them and was deceived thereby, and was induced to buy the calves in...