Lester v. Hugley

• Decision Date: 02 May 1921
• Docket Number: No. 12599.,12599.
• Citation: 230 S.W. 355
• Parties: LESTER v. HUGLEY.
• Court: Missouri Court of Appeals

230 S.W. 355

LESTER v. HUGLEY.

No. 12599.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Appeal from Circuit Court, Carroll County; F. P. Divilbiss, Judge.

"Not to be officially published."

Action by M. Lester, Jr., against Virginia Hugley. From judgment for defendant, plaintiff appeals. Affirmed.

Dwight Beals, of Hale, and Atwood & Atwood, of Carrollton, for appellant.

S. J. & G. C. Jones, of Carrollton, for respondent.

BLAND, J.

This is an action for the breach of a warranty in the sale by defendant to plaintiff of three registered Hereford cows. There was a verdict and judgment for defendant, and plaintiff has appealed. The warranty charged in the petition was that defendant, in offering to sell the cows, "warranted and represented said cows to be bred to a registered Hereford bull belonging to Charles Kern." There was evidence tending to show that defendant made the warranty pleaded, but she testified in defense that her statement was that the first cow was "supposed to be" bred, as "she was taken to Mr. Kern's animal," and that no warranty was made as to the other two cows. Plaintiff's evidence showed that the first cow did not bring forth a calf until bred by defendant, that each of the other two cows brought forth a black calf, and that if the cows had been bred to a Hereford bull the calves would not have been of that color.

The court on behalf of plaintiff gave the following instruction:

"No. 2. The court instructs the jury that, if they believe from the evidence in this case that defendant sold to plaintiff the three registered Hereford cows as alleged in plaintiff's petition, and that at the time of such sale she represented that said cows were bred to a registered Hereford bull, and that plaintiff relied upon such representation in purchasing said cows, as alleged in plaintiff's petition, and if they further believe from the evidence that two of said cows were not so bred to a registered Hereford bull, but were bred to a black bull of other breed, and one cow not bred at all, and if they further believe from the evidence that said two cows as so bred and the one cow not bred were of less market value owing to such breeding to said black bull and failure to breed at all, then plaintiff would be entitled to recover in this action such difference in the reasonable market value, if any, and your verdict should be for plaintiff in the sum of such difference."

On behalf of defendant the court gave instructions Nos. 1 and 2, as follows:

"No. 1. The court instructs the jury that there is no warranty that the cows or either of them were with calf by Mr. Kern's or any other person's bull, and the jury are therefore instructed that they can't find against plaintiff because said cows or either of them were not with calf by Mr. Kern's bull.

"No. 2. The court instructs the jury that, if they believe from the evidence that defendant stated that only one of said cows had been bred to the bull owned by Charles Kern, it will be the duty of the jury to find for the defendant, provided the jury further believe that said one cow had been bred to said Kern's bull."

Plaintiff insists that the court erred in giving defendant's instruction No. 1, for the reason that it "does not properly present any issue joined by the pleadings or covered in the testimony," but presents to the jury immaterial matters well calculated to confuse the jury by directing their attention to such matters. In this connection it is pointed out that the warranty sued upon is not that the cows were with calf, but that they were bred to a registered Hereford bull; that, if the warranty had been that the cows were with calf, there would be no cause of action in respect to two of the cows, as they brought forth calves showing mixed breed; that the instruction tends to confuse and mislead the jury in that it does not submit whether there was a warranty that the cows had been bred to a registered Hereford bull; that the instruction gives undue prominence to certain facts; that the instructions in calling attention to the jury that the defendant did not warrant the cows to bring forth calves, tended to confuse the jury by directing their attention to the fact that there was no evidence to support such a warranty, thus obscuring the issue raised by the evidence that the cows were really bred, and suggests to the jury that it confine its investigations to whether or not the warranty was that the cows were to bring calves.

Plaintiff's pleading and evidence is confined to the theory that the...