Hartgrove & Clegg v. Southern Cotton Oil Co.

• Decision Date: 05 December 1903
• Citation: 77 S.W. 908
• Parties: HARTGROVE & CLEGG v. SOUTHERN COTTON OIL CO.
• Court: Arkansas Supreme Court

77 S.W. 908

HARTGROVE & CLEGG v. SOUTHERN COTTON OIL CO.

Supreme Court of Arkansas.

December 5, 1903.

Appeal from Circuit Court, Pulaski County; Joseph W. Martin, Judge.

Action by Hartgrove & Clegg against the Southern Cotton Oil Company. From a judgment for plaintiffs for $400, plaintiffs appeal. Reversed.

The Southern Cotton Oil Company, of Little Rock, Ark., agreed with the partnership firm of Hartgrove & Clegg that the cotton oil company would furnish to the firm cotton seed hulls, and also a quantity of prime cotton seed meal sufficient to feed a large number of cattle which Hartgrove & Clegg agreed to bring from Texas and to feed at the cattle pens of the company near Little Rock. The firm on their part agreed to pay to the company a stipulated price for the hulls and meal furnished by the company. The firm claimed that the cattle became sick by reason of the fact that the company furnished inferior meal made from damaged and rotten cotton seed which were fed to the cattle, and that by this breach of the contract on the part of the company the firm suffered a large amount of damages, to recover which they brought this action at law. The company filed its answer, denying each material allegation of the complaint, except that the contract had been made and the meal furnished. On the trial the court refused to give certain instructions asked by the plaintiff as to the measure of damages, and gave the following instruction on his own motion: "If you should find for the plaintiffs that the defendant was guilty of the breach alleged, and that the sickness of their cattle was the result, and you further find that as to such breach, under the rules of law as given, the plaintiffs are barred from no part of their recovery by reason of their own failure to perform their duty in the matter, then the measure of their damages would be, as to the cattle that died, their fair market value when made sick. And as to the cattle that were sick and recovered, it would be the difference between their market value when they were taken sick and their market value immediately after said sickness. And here the defendant would be entitled to the application of the rule given as to their duty to use all reasonable effort to prevent additional loss from defendant's breach of contract. That if you should find that by the subsequent care and attention to the cattle by plaintiffs there was a reduction in the amount of damages as declared by above rule, then the defendant would be entitled to benefit of such reduction; and, as to the cattle which recovered and were finally sold by plaintiffs, you should take as a measure of the damages in this case the final loss in the aggregate weight of the cattle by reason of such sickness and injury as the defendant was responsible for, and also the loss in value per hundred pounds of cattle by reason of the depreciation in the quality of the cattle for beef, so far as you may find such elements of damage established by a preponderance of the evidence in the case. Fluctuations in the cattle market are not to be regarded by you. This estimate of damages would include the reasonable and necessary expenses, as you may find from the evidence, incurred by the plaintiffs in so caring for the cattle after their sickness, and up to the time when they were ready for the market. Remembering, in the application of these rules and measures of damages as indicated herein above, that the plaintiffs are barred from recovery of all damage, if any shown, which was the result of their own failure to exercise ordinary care and prudence in the matter of feeding their cattle on said meal. Negligence is the failure to exercise ordinary care; that is, it is the doing of something which a person of ordinary care and prudence would not do under all the circumstances, or the failure to do something which a person of ordinary care and prudence would do under all the surrounding circumstances, and it is a question for the jury to settle, in view of all the evidence before them in each particular case." There was a verdict and judgment in favor of plaintiff for the sum of $400, from which plaintiff appealed.

C. K. Bell and W. S. & F. L. McCain, for appellants. Geo. W. Williams, Sterling Pearson, and Ratcliffe & Fletcher, for appellee.

RIDDICK, J. (after stating the facts).

This is an action by plaintiffs against a cotton seed oil company to recover damages which plaintiffs allege was caused by the fact that the defendant, in violation of its contract, furnished meal made in part from rotten cotton seed, which, being fed to the cattle of plaintiffs, caused them to become sick, to the damage of plaintiffs in a large amount. The facts are not set out in the bill of exceptions, but only those facts are stated necessary to show the bearing and pertinency of the instructions given by the court or asked by the parties. The facts as thus set out show that evidence was introduced by the plaintiffs tending to show that the defendant company did for a stipulated price agree to furnish plaintiffs a sufficient quantity of cotton seed hulls and prime cotton seed meal to feed the cattle of plaintiffs, and that in violation of this contract the company furnished to the plaintiffs cotton seed meal mixed to the extent of 8 or 10 per cent. with meal which had been made from old cotton seed that had been overheated and damaged by rain and were partly rotten. The bill of exceptions further states that the evidence tended to show that some of this meal thus mixed had been delivered and fed to plaintiffs' cattle before plaintiffs noticed that anything was wrong with the meal; and plaintiffs having observed that their cattle were not doing well, and being expert cattle feeders and capable of telling good meal, examined the meal which was being fed to their cattle, and saw that the meal was dark in color, tasted and smelled badly, and they pronounced it bad meal. They then reported this fact to the superintendent of the defendant, and objected to the use of such meal. He thereupon showed to plaintiffs the cotton seed cake from which he claimed that the meal that was being furnished to plaintiffs was made, and plaintiffs, seeing this was good cake, and being thus assured by the superintendent, continued to feed the meal a while longer; but, still finding that their cattle to which the meal was fed were not doing well, they went into the room where the meal was manufactured, and saw that the meal was being mixed with dark meal made from overheated seed brought over from the crop of 1898. Plaintiffs then reported this fact to the superintendent, and declined to use the mixed meal further, and thereafter they were furnished good meal.

In view of this evidence, we think the instruction given by the court on this point which is set out in the bill of exceptions is somewhat too narrow, as it falls to call the attention of the jury to the phase of the case...