Grigsby v. Stapleton

• Decision Date: 05 March 1888
• Citation: 94 Mo. 423,7 S.W. 421
• Parties: GRIGSBY v. STAPLETON.
• Court: Missouri Supreme Court

7 S.W. 421

94 Mo. 423

GRIGSBY v. STAPLETON.

Supreme Court of Missouri.

March 5, 1888.

SALE — LATENT DEFECT — TEXAS FEVER.

Plaintiff sold cattle to defendant at a sound price, knowing that they had Texas fever, and that some of them had died from the disease. Defendant did not know that they were diseased, nor that any had died. Texas fever is a disease not easily detected, except by those acquainted with it. Held a fraudulent concealment by plaintiff of a latent defect, and that the doctrine of caveat emptor did not apply.

Appeal from circuit court, Nodaway county; H. S. KELLEY, Judge.

Suit by Francis J. Grigsby against James Stapleton. Judgment for plaintiff, and, after motion for a new trial, defendant appeals.

Johnston & Craig, for appellant. Edwards & Ellison and W. W. Ramsay, for respondent.

BLACK, J.

This was a suit in two counts. The first declares for the contract price of 100 head of cattle sold by the plaintiff to the defendant the second seeks to recover the value of the same cattle. The contract price, as well as the value, is alleged to have been $3,431.25. The answer is — First, a general denial; second, fraudulent representation as to the health and condition of the cattle; third, fraudulent concealment of the fact that they had the Spanish or Texas fever; fourth, tender of their value in their diseased condition. Plaintiff purchased 105 head of cattle at the stock-yards in Kansas City on Friday, the 25th July, 1884, at $3.60 per cwt. He shipped them to Barnard on Saturday. Mr. Ray, plaintiff's agent, attended to the shipment, and accompanied the cattle. Ray says it was reported in the yards, before he left Kansas City, that the cattle were sick with Texas fever; some persons said they were sick, and some said they were not. When the cattle arrived at Barnard, Ray told the plaintiff of the report, and that the cattle were in bad condition; that one died in the yards at Kansas City, before loading, and another died in the cars on the way. On Sunday morning the plaintiff started with them to his home. After driving them a mile or so, he says he concluded to and did drive them back to the yards, because they were wild. One of them died on this drive, and two more died in the pen at Barnard before the sale to defendant. There is much evidence tending to show that the plaintiff drove cattle back, because he was afraid to take them to his neighborhood, and that he knew they were diseased, and dying from the fever. He made no disclosure of the fact that the cattle were sick to defendant, nor that they were reported to have the fever. Defendant bargained for the cattle on Sunday afternoon, and on Monday morning completed the contract at $3.75 per cwt., and at once shipped them to Chicago. Thirty died on the way; twenty were condemned by the health officer. It is shown beyond all question that they all had the Texas fever. The court, by the first instruction given at the request of the plaintiff, told the jury that if "plaintiff made no representations to defendant as to the health or condition of said cattle to influence defendant to believe said cattle were sound or in healthy condition, but, on the contrary, defendant bought said cattle on actual view of the same, and relying on his own judgment as to their health and condition, then the jury will find for the plaintiff; * * * and, if the cattle were bought by the defendant in the manner above stated it makes no difference whether said cattle, or any of them, were, at the time of said sale, affected with Texas fever or other disease, or whether plaintiff did or did not know of their being so diseased, as, under such circumstances, he would buy at his own risk and peril."

Caveat emptor is the general rule of the common law. If defects in the property sold are patent, and might be discovered by the exercise of ordinary attention, and the buyer has an opportunity to inspect the property, the law does not require the vendor to point out defects. But there are cases where it becomes the duty of the seller to point out and disclose latent defects. Parsons says the rule seems to be that a concealment or misrepresentation as to extrinsic facts which affect the market value of the things sold, is...