Gee v. Cowherd

• Decision Date: 30 January 1923
• Citation: 247 S.W. 364,197 Ky. 460
• Parties: GEE ET AL. v. COWHERD ET AL.
• Court: Kentucky Court of Appeals

247 S.W. 364

197 Ky. 460

GEE ET AL. v. COWHERD ET AL.

Court of Appeals of Kentucky.

January 30, 1923

Appeal from Circuit Court, Christian County.

Action by George H. Gee and others against Vardie Cowherd and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Selden Y. Trimble and Trimble & Bell, all of Hopkinsville, for appellants.

Breathitt & Breathitt, of Hopkinsville, for appellees.

McCANDLESS J.

Appellants allege in their petition that they purchased from appellees a certain number of cattle; that at the time of the purchase appellees represented the cattle to be sound and in good physical condition, and that they relied on those representations, but that the cattle were diseased, and appellees knew that fact. That same were taken to their farm and placed with other cattle, to which the disease was communicated, and as a result 14 of the herd died, and others were stunted; all of which was caused by said misrepresentations of the appellees. They also pleaded special damages for extra attention, etc., and prayed a total recovery of $544.75. These allegations were traversed by the answer, which contained no affirmative plea. A trial before a jury resulted in a verdict for appellees.

Appellants insist that the verdict is not sustained by the evidence, and that the instructions are erroneous. They introduced a number of witnesses who testified strongly as to the facts claimed by them, but, on the other hand, appellees did the same, and the court cannot as a matter of law say that the verdict is not sustained by the evidence.

The first instruction reads:

"The court instructs the jury that, if you believe from the evidence that the defendants sold to plaintiffs ______ head of cattle, and represented them to be sound and in good physical condition, or in substance so represented them and that they were received by plaintiffs upon said representation; and if you should further believe from the evidence that at the time of the sale of said cattle they were diseased, and defendants, or either of them, owning an interest in said cattle, knew they were diseased, whether there was a warranty or representation of soundness or not, and if you should further believe from the evidence that, after the said sale and delivery to plaintiffs, as a result of said disease, a number of said cattle, including four head of other cattle belonging to plaintiffs, which contracted

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