Knight v. Davenport

• Decision Date: 22 March 1954
• Docket Number: No. 3820,3820
• Citation: 71 So.2d 388
• Parties: KNIGHT v. DAVENPORT.
• Court: Court of Appeal of Louisiana — District of US

Page 388

71 So.2d 388

KNIGHT v. DAVENPORT.

No. 3820.

Court of Appeal of Louisiana, First Circuit.

March 22, 1954.

Watts & Rich, Franklinton, for appellant.

Carter & Erwin, Franklinton, for appellee.

LOTTINGER, Judge.

This is a suit by Alvin P. Knight, against William M. Davenport for rescission of the sale of a cow, the return of the purchase price and expenses for keeping the cow, plus loss of profit. From judgment below in favor of petitioner, the defendant has appealed.

The facts show that on September 14, 1951, the defendant sold the petitioner five milch cows for the purpose of dairying. The price was $310 per cow. One cow was not satisfactory to the petitioner, and the defendant permitted the petitioner to substitute another cow for the unsatisfactory one. This substitution, or exchange was made on October 19, 1951. The cow received in this exchange is the one in question in this suit.

On October 20, 1951, this cow gave birth to a calf. The calf was exceedingly small and apparently abnormal, and died several weeks later. On Monday, October 22, 1951, the petitioner had the State Veterinarian take a blood sample of the cow, and the results showed that the said cow was suffering with Bang's disease. In addition to the calf being abnormal, the cow showed other signs of having Bang's disease within three days of the sale. One of these symptoms was a 'cold short quarter' and another was that the stifle joint of the right rear leg was affected.

The petitioner filed this suit seeking the return of the purchase price of $310, plus $1 per day for feeding and preserving the cow, and a further sum of $1 per day for his toil and labor expended in preservation of the cow. He also seeks $1.55 per day for loss of profit.

Defendant first filed an exception of no cause or right of action, which was referred to the merits. He later filed an answer denying that the cow had Bang's disease, and furthermore that the cow was sold with no guarantee whatever.

The lower court gave judgment in favor of petitioner in the sum of $393.50, of which $310 was the purchase price of the cow, and $83.50 was for upkeep of the cow at 50cents per day. The defendant has taken this appeal.

The lower court, in its reasons for judgment, stated as follows:

'After the plaintiff selected the cow he desired from several which were in the defendant's pasture, he then carried the cow to his home, and on the next day she gave birth to a calf, which was unable to stand up and was very small; plaintiff became suspicious that the cow had Bang's disease and immediately contacted his brother, Dr. W. W. Knight, a Veterinarian, who reached the conclusion that the cow was infected with Bang's disease, due to the fact she had a swelling in the knee, or the stifle joint. Dr. Knight drew blood from this cow for the purpose of having a test made for Bang's disease, and even though there is considerable conflict in the testimony as to whether the exact blood which he drew was the blood which was subsequently tested, I am satisfied from all the testimony the tube which was numbered 9 was the one which contained the blood from this cow, and a testing of this blood by Dr. C. B. Jamieson, a laboratory technician at the Louisiana State Livestock Laboratory, showed that the cow actually had Bang's disease. Dr. Knight's testimony further showed if a cow had Bang's disease her value was decreased due to the fact you could not sell the milk from said cow because it was 20% sterile or better, and further than this, the crippled condition of the cow due to the swelling of the knees made her unfit for dairy purposes, and further than this, it was bad practice for a dairyman to permit the cow with Bang's disease in his herd for the reason that the disease was contagious and would spread throughout the entire herd.

'Since I am of the opinion that this cow was infected with Bang's disease within one day subsequent to the exchange, and since I am of the further opinion that at the time of the exchange that the defendant warranted the cow not to be infected with said disease, then the question to be resolved is whether or not the plaintiff is entitled to a rescission and return of the price under said exchange.

'Article No. 2660 of the LSA-Civil Code defines exchange as a contract by which the parties to the contract give to one another one thing for another, whatever it may be except money, and Article No. 2667 of the LSA-Civil Code clearly shows that the rules relative to rescission of a sale for redhibitory vices is equally applicable to the transaction of exchange.

'Article No. 2520 of the LSA-Civil Code provides that redhibition is the avoidance of a sale upon some vice or defect in a thing sold which renders it actually useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. Article No. 2524 of the LSA-Civil Code...