Kemp v. Mays

• Decision Date: 27 April 1920
• Docket Number: 10,348
• Citation: 127 N.E. 156,73 Ind.App. 214
• Parties: KEMP ET AL. v. MAYS
• Court: Indiana Appellate Court

127 N.E. 156

73 Ind.App. 214

KEMP ET AL. v. MAYS

No. 10,348

Court of Appeals of Indiana

April 27, 1920

From Jay Circuit Court; E. E. McGriff, Judge.

Action by Thomas J. Mays against William Kemp and another. From judgment for plaintiff, the defendants appeal.

Affirmed.

Roscoe D. Wheat, for appellants.

James R. Fleming and Malcolm V. Skinner, for appellee.

OPINION

MCMAHAN, J.

This is an action by appellee, a farmer, against appellants for damages incurred by appellee by reason of appellants having sold him a number of hogs alleged to have been afflicted with cholera, and which appellants warranted to be healthy and free from disease. The cause was tried by a jury and resulted in a verdict and judgment for appellee.

The error relied upon for reversal is that the court erred in overruling appellants' motion for a new trial. Appellants contend that the verdict is not sustained by sufficient evidence and is contrary to law, and insist that there is no evidence to support the charge of warranty. Appellee testified that in a conversation with one of the appellants they being partners, appellee said that he did not want to buy cholera hogs or anything like that; that he was afraid to buy out of the stock pens, to which said appellant replied "There is no hog cholera in the country that I know of and the pigs are all right." There is also evidence tending to show that appellants knew that appellee was buying the hogs to place on his farm for feeding purposes.

Without setting out the evidence of the several witnesses, or entering into a discussion of the same, it is sufficient to say that there is some evidence on the question as to whether appellants warranted the hogs to be free from disease. This was a question for the jury and, there being some evidence on the question, we cannot disturb their verdict.

A direct and positive affirmation that an animal is sound amounts to a warranty of soundness, and so too does an affirmation that the animal is "all right." 35 Cyc 388; McClintock v. Emick, etc., Co. (1888), 87 Ky. 160, 7 S.W. 903; Smith v. Justice (1861), 13 Wis. 600; Joy v. Bitzer (1889), 77 Iowa 73, 41 N.W. 575, 3 L. R. A. 184; Little v. Woodworth (1879), 8 Neb. 281.

Appellants also insist that the court should have granted them a new trial on account of newly-discovered evidence, but there is an entire failure on their part to show any diligence to discover this evidence prior to...