Kelly v. Emary
| Decision Date | 06 February 1951 |
| Docket Number | No. 47804,47804 |
| Citation | 242 Iowa 683,45 N.W.2d 866 |
| Parties | KELLY v. EMARY. |
| Court | Iowa Supreme Court |
Killmar & Reynoldson, of Osceola, for appellant.
Thos. E. Mullin, and Healey & Reynolds, all of Creston, for appellee.
Plaintiff's cause of action was originally in two counts. Count I declared upon a check given to plaintiff by defendant, dated and delivered on March 7, 1947, in the sum of $2886, with protest fees of $2.25. Count II was dismissed at the close of plaintiff's evidence, and no further attention need be given to it.
Defendant's answer was in three divisions, but as Division II was directed to Count II of the petition it will be disregarded, and Division III will hereafter be referred to as Division II. Division I admitted the making and delivery of the check, and that the check had not been paid. Further, this division of the answer alleged that the check was given in payment for a truck load of feeder hogs, which plaintiff warranted to be free from any infectious disease, in particular the disease of 'scours.' Breach of the warranty was pleaded with allegations that 'on account of the breach of warranty and the diseased condition of said hogs, they were of no value and the consideration for the said check wholly failed.' It was further alleged that plaintiff was orally notified of the diseased condition of the hogs, and that they were tendered back to plaintiff and that he refused to accept them.
Division II of the answer pleaded a counterclaim, based upon the same claimed breach of warranty, alleging the death of 79 out of a total of 133 of said hogs, and pleading certain expenses for feeding, veterinarian's charges, and other items.
At the close of all the evidence in the case the trial court directed a verdict for the plaintiff upon the check, with interest. Thereupon defendant asked leave to file an amendment to his counterclaim to conform to proof, setting up the death of 78 of the hogs, that 11 more were so diseased that they also were of no value, and that the remaining 44 were fed and sold on the market but that they consumed extra feed and required extra care on account of their sickness. Further allegations set out the amount of damage claimed because of the nonvalue of the hogs which died and of the 11 which were so diseased as to be worthless. The amendment sought to strike out the total loss claimed in the original counterclaim which was put therein at $2,500, and to increase it to $3,500. The court, upon objection by plaintiff, refused to permit the filing of the amendment denied plaintiff's motion to direct a verdict upon the conterclaim, and submitted it to the jury, which returned a verdict thereon in the sum of $350. The defendant requested certain instructions and took exceptions to those given by the court. But no issue is involved herein concerning these, for the reason, stated by defendant in the record, that 'the defendant's requested instructions and the defendant's exceptions to the court's instructions are not included in the record, because the jury returned a verdict for the defendant, W. S. Emary, upon his counterclaim.' Immediately following this statement, however, the record shows the following:
'That, so far as the instructions given by the court on its own motion are concerned, the only points upon which appellant will rely on the appeal are:
'(b) That the instructions given by the court did not submit any specification of damages to the jury on account of the difference in the value of the load of hogs in the condition in which they actually were at the time of delivery, and the contract price as evidenced by the amount of the check given for them by defendant, W. S. Emary.'
Whether these objections are based upon exceptions properly taken to the instructions is not shown, and under well-established rules we cannot consider them. In any event, they are not well-founded, as will hereafter appear.
I. Defendant's assignments of error, while variously stated, center around the action of the court in directing a verdict for the plaintiff upon Count I of his petition. The transaction herein is governed by the provisions of the Sales Law, and seems, without any real question, to come under paragraph 1a of section 554.70, Code of 1950, I.C.A., which we set out here:
'1. Where there is a breach of warranty by the seller, the buyer may, at his election:
While defendant's answer alleged a tender of the hogs to plaintiff, and his refusal to accept them, the evidence shows no sufficient tender. Defendant's own testimony shows that on March 14, 1947, he called plaintiff, told him the hogs were sick, and asked him to come up and see them. Plaintiff said he would not. Later, defendant and plaintiff met in Dr. Windland's office, where, according to defendant, he asked plaintiff to There was no evidence of rescission to be submitted to the jury, and no assignment of error is based upon the court's failure so to do.
Defendant had the right, however, to set up the breach of warranty against plaintiff by way of recoupment in diminution or extinction of the price. This he did in the first division of his answer. It should be noted here that defendant's demand, at best, could not be held to justify a finding of no value whatever for the hogs because he kept the hogs and received, according to the record, quite substantial amounts from those which did not die when he put them on the market some months later. Recoupment is defined as 'in the nature of a cross action, wherein defendant alleges that he has been injured by a breach by plaintiff of another branch of the same contract on which the action is founded, and claims to stop, cut off, or keep back so much of plaintiff's damages as will satisfy the damages which have been sustained by the defendant.' 57 C.J. 358, § 1. There is an interesting discussion of the nature and effect of recoupment in 22 Iowa Law Review 118.
It is clear that defendant was given the right by the statute above quoted to resort to this defense. In so doing, however, he necessarily resorted to allegations of breach of warranty. It was not sufficient for him to plead merely that the hogs had no value, or that their value was not equal to the purchase price established by the check. This would show only that he made a bad bargain. It was incumbent upon him to prove that the diminished value was due to some breach of the contract by plaintiff. This he recognized, and so pleaded and attempted to prove the warranty and its breach. Here he assumed the burden of proof. It is true that the burden to show consideration is upon the plaintiff in a suit such as this. In re Estate of Custer, 229 Iowa 1061, 1065, 295 N.W. 848; Spurway v. Read, 210 Iowa 710, 712, 231 N.W. 306, 308. He carried the burden in the first instance through the presumption of consideration attaching to a written contract. Code § 537.2, I.C.A. But the burden never shifted, although the duty of going forward with the evidence did so.
However, it must be noted that defendant himself assumed the burden of showing breach of warranty, both in his answer and counterclaim. In Oelwein Chemical Company v. Baker, 204 Iowa 66, 68, 214 N.W. 595, plaintiff sued to recover the purchase price of certain merchandise. Defendant answered and counterclaimed, pleading fraud and breach of warranty. The court submitted the issues. Upon appeal we held that there being no evidence to prove a breach of warranty the issue should not have been given to the jury. In Hoffman v. The Independent District of Hampton, 96 Iowa 319, 65 N.W. 322, we held that the burden is upon the buyer to plead and prove breach of warranty.
It appears, therefore, that the same burden rested upon defendant to plead and prove breach of warranty either under his answer or his counterclaim. The same breach was relied upon in each, and the same evidence...
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