Harding v. Grant City Sale Barn, Inc.

• Decision Date: 05 March 1973
• Docket Number: No. 26082,26082
• Citation: 492 S.W.2d 99
• Parties: Harold HARDING, Plaintiff-Appellant, v. GRANT CITY SALE BARN, INC., a corporation, and George Young, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 99

492 S.W.2d 99

Harold HARDING, Plaintiff-Appellant, v. GRANT CITY SALE BARN, INC., a corporation, and George Young Defendants-Respondents.

No. 26082.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

Thomas J. Stephens, Jerold L. Drake, Stephens & Drake, Grant City, for plaintiff-appellant.

Beavers, Thomson & Beavers, Maryville, for defendants-respondents.

Before DIXON, P.J., and PRITCHARD, and SWOFFORD, JJ.

SWOFFORD, Judge.

This is an appeal from an adverse judgment, after jury verdict, in favor of the defendants-respondents in an action brought against them by the plaintiff-appellant for $5,457.24 claimed to be the balance due by reason of certain transactions between the parties involving the sale of approximately 175 head of cattle. The parties will be referred to as they were in the court below.

After the adverse judgment below, plaintiff filed a motion for a new trial, which was overruled by the passage of time (Rule 78.04) and this appeal followed.

Plaintiff raises two points upon appeal, both directed at alleged error of the trial court in giving Instruction No. 6. This instruction was given as follows:

'Your verdict must be for either or both of the defendants, Grant City Sale Barn, Inc. or George Young, if you believe:

First, plaintiff's contract with defendant was for goods having a price of Five Hundred ($500.00) Dollars or more, and

Second, the contract was not in writing nor was any memorandum or note thereof made in writing and subscribed by either or both of the defendants, Grant City Sale Barn, Inc. or George Young, or its or his agent or broker, and

Third, there was no acceptance by either or both of the defendants, Grant City Sale Barn, Inc. or George Young of any part of the goods alleged to have been sold.' (Emphasis ours)

Plaintiff asserts that this instruction is erroneous for two reasons. First, because under the evidence, the defendants had, as a matter of law, accepted the livestock involved and that, therefore, the defense of the Statute of Frauds, as hypothesized in said instruction, was inapplicable under the Uniform Commercial Code, Section 400.2--201(3)(c). Second, plaintiff asserts that Instruction No. 6 was erroneous because the court failed to give an instruction defining the term 'acceptance' as used in paragraph Third of the instruction.

The first point raised by the plaintiff requires that we briefly summarize the evidence in the record.

The plaintiff was a farmer engaged in the raising of cattle. The defendant, George Young, was the principal owner and stockholder of the defendant Grant City Sale Barn, Inc., a corporation. While the record is somewhat unclear as to exact functions performed by the Sale Barn or the scope of its operations, it appears that it regularly conducted public auctions of various types of livestock, including cows, for breeding, and also for slaughter. It would be reasonable to assume from the record that the defendants sometimes sold livestock as the owners thereof and upon other occasions acted as auctioneers or agents for the owners. The sales tickets which they furnished to buyers contained the following: 'We do not guarantee livestock against sickness or death. We act as agents only.'

The evidence showed that in November, 1969, the defendant Young visited the plaintiff's farm, looked over his cattle consisting of cows and calves for the purpose as stated by the plaintiff, 'to see about selling my cattle'.

The plaintiff testified further that Young placed a value of $50,000.00 on a herd of 176 cattle owned by Young and offered him $47,500.00 for this herd and that Young 'finally bought the cattle' on November 29, 1969.

The plaintiff testified that he made no guarantee as to the health of this herd but there is no dispute in the record that the cows were to be sold through the Sale Barn for breeding purposes, or that when such cows were sold for such purpose that they had to be accompanied by a health certificate that they were free from brucellosis, which is a disease which affects the ability of cows to reproduce and causes them to abort.

The plaintiff testified that he had such health certificates on some but not all of his cows, but he did not deliver them at any time to the defendants; that the state veterinarian took these papers after the sale and they had not been returned and were not produced at trial. The plaintiff was positive in his testimony that this herd had been sold to defendant Young on November 29, 1969 as an outright sale rather than employing Young's services as an auctioneer.

Defendant Young testified that he had solicited plaintiff's herd for a special cow sale; that there was a price agreed upon of $47,500.00 but that such agreement was contingent upon the proper tests being made and a showing that the herd was free from brucellosis and he definitely stated 'they weren't my cows because they hadn't passed the test'. He also testified that no one would buy a cow for breeding purposes without a health certificate that it was free from brucellosis.

All parties to this transaction admitted that it was completely oral in nature and that nothing pertaining to it was ever reduced to writing.

The record further shows that the plaintiff delivered this herd to the Grant City Sale Barn on December 10, 1969, and that on that same date Dr. J. B. Taylor, Veterinarian, tested the herd for brucellosis and found that 4 of the cows had brucellosis and two others were suspect.

The evidence was that when infected cows are discovered in a herd, the whole herd is subject to quarantine and, as we understand the record, none of the cows can be sold for breeding purposes until the herd is free of the disease and proper health certificates issued.

When the disease was discovered in the herd, defendant Young called the plaintiff to the Sale Barn and he was advised of the results of the tests and it was suggested that he take the cows back to his farm for quarantine or that the herd be sold at auction for slaughter rather than for breeding. According to Doctor Taylor, 163 head were sold by the pound through the Sale Barn, for slaughter. The proceeds of the sale amounted to $42,042.76 which was remitted to the plaintiff. This suit involves a claim for the difference between that amount and the $47,500.00.

The real dispute in this record revolves around whether or not upon the discovery that the plaintiff's herd was infected with brucellosis the defendant Young rejected or accepted them, and if he had acted within a reasonable time.

Upon this record, we have reached the conclusion that these matters were properly for jury determination and that the defendants had not accepted the subject matter of the sale as a matter of law.

Before considering the applicable terms of the Uniform Commercial Code (which are controlling here) it is appropriate to state that plaintiff's principal reliance upon his right to recovery reposes in a decision of the Supreme Court of Missouri in 1926. Plaintiff's brief states: 'Appellant's cause of action is based upon the case of Barton v. Dowis (315 Mo. 226), 285 S.W. 988 (1926).'

It is true that the Barton case held that the doctrine of caveat emptor applied to the sale of animals. A careful reading of the Barton case, however, indicates that it does not support plaintiff's position. Barton involved the sale of hogs for breeding purposes that were infected with cholera. The court in Barton specifically said, l.c. 989:

'Where an article is sold for a special purpose, it carries with it a warranty that it is fit for that purpose. And that applies to animals. * * *'

The court further said:

'If the hogs were afflicted with disease which rendered them unfit for breeding purposes, then that defect, it may be conceded, would be covered by the implied warranty. * * * There is no evidence to show that the hogs purchased by the plaintiffs were not good for breeding purposes--the purpose for which they were bought.'

We do not consider Barton v. Dowis supportive of plaintiff's position, particularly in view of the present status of the law of sales, as hereinafter discussed.

In the case of Moore v. Miller, 100 S.W.2d 331, 334--335 (Mo.App.1936), the court held that a sale of animals for certain purposes carried with it 'by implication that the article is free from hidden defects that would impair its usefulness for such purpose.' See also, Mitchell v. Rudasill, 332 S.W.2d 91, 96, 87 A.L.R.2d 1309 (Mo.App.1960).

The matter before us more specifically involves application of Article 2 of the Uniform Commercial Code, Laws 1963, relating to 'Sales' rather than the common law principles enunciated in the foregoing...