Long v. Clapp

• Decision Date: 28 May 1884
• Citation: 19 N.W. 467,15 Neb. 417
• Parties: JOHN B. LONG AND J. E. SMITH, PLAINTIFFS IN ERROR, v. D. C. CLAPP ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 467

15 Neb. 417

JOHN B. LONG AND J. E. SMITH, PLAINTIFFS IN ERROR, v. D. C. CLAPP ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 28, 1884

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

A. H Babcock and Brown & Ryan Brothers, for plaintiffs in error.

Proof shows simply that Smith was a joint owner. This would not justify a verdict on the warranty of Long. Mayberry v Willoughby, 5 Neb. 375. Boeklen v. Hardenburgh, 37 N.Y.S.Ct. 110. Woodward v. Cowing, 41 Me. 9. Iliff v. Brazill, 27 Iowa 131. Parsons on Partnership, 95. Norton v. Thatcher, 8 Neb. 191. Huckabee v. Nelson, 54 Ala. 14. Powers v Irish, 23 Mich. 429. Richards v. Walton, 12 Johns. 434. Dickson v. Burke, 28 Tex. 117. Fuller v. Robb, 26 Ill. 246. Dickerson v. Chrisman, 28 Mo. 134.

Colby & Hazlett and L. M. Pemberton, for defendants in error.

Damages recoverable. Field, §§ 273, 288, 274, 906. Sutherland, 435. Long testifies that he and Smith were jointly interested. What that joint interest was does not appear, but jury were justified in finding it sufficient to make them partners. Nebraska Railway v. Lett, 8 Neb. 251. 1 Lindley on Partnership, 236. Chapman v. Murch, 19 Johns. 290. Osgood v. Lewis, 2 Har. & Gill., 495. Long was authorized by Smith to sell his interest in the sheep, and an authority to sell such property carries with it an authority to warrant. Schuchardt v. Allens, 1 Wallace (U. S.), 359. Andrews v. Kneeland, 6 Cowen, 354. Taylor v. Green, 8 C. & P., 316. 2 Addison on Cont., § 631 (Morgan's Ed.), and cases cited in note 1.

OPINION

COBB, CH. J.

This action was brought in the court below by the defendants in error against the plaintiffs in error for damages occasioned by a breach of warranty in the sale by plaintiffs in error to defendants in error of five hundred head of sheep, which were warranted to be sound and free from scab, etc., but which were diseased and affected with the scab. The said plaintiffs in the court below also alleged and set up in their petition that they then had on their farm another band of sheep, consisting of 500 head, which were sound and free from disease; that when they bought the said first mentioned sheep it was with the intention and purpose of placing and keeping them together with said band which they already had on hand, all of which they allege was known to the defendants below at the time of said sale and warranty; that they took the said sheep so warranted to their farm and turned them in with their other band above mentioned; that in consequence thereof the said disease affected and spread among the sound sheep of said original band "until the whole flock become diseased, and three hundred and eighteen valuable ewes and seven valuable bucks thereof died of the said disease, and the remainder of said flock become covered with scab and lost large quantities of wool of great value, and become sick and dropped and lost their lambs of great value and required extra care and nursing and doctoring; that they had to and did hire extra help--several men for during about nine months * * * and did necessarily expend large sums of money for medicines and extra sheds and pens and doctoring and caring for said diseased sheep, to-wit, the sum of $ 500; and that by reason of the premises plaintiffs have been damaged in the sum of $ 6,000," etc.

The defendants answered severally: Long admitting the sale of the sheep to the plaintiffs, but denying every other allegation contained in the petition; and Smith denying everything.

There was a trial to a jury, verdict against both defendants, and judgment for $ 1,500 against both defendants, who bring the cause to this court on error.

The first point made by plaintiffs in error in their brief is founded upon the alleged error of the court in permitting certain questions to be propounded to and answered by witnesses on the part of the plaintiffs below as to the expense incurred by the plaintiffs below "in curing these sheep, medicines, ointment, and doctoring them for the purpose of curing the disease," and to which the witnesses answered: "Tobacco cost $ 150; don't know price of medicines and ointment." Also the following question: "What was the expense of extra help in caring for these sheep when diseased?" A. "The extra care is according to the winter; and from the time the sheep broke out we were with them all the time, and had five men through lambing, five with ourselves, that is, three others * * * it must have cost us three hundred dollars for extra help."

So far as the warranted and diseased sheep were concerned, if their value in their diseased condition had been definitely fixed, and no longer a question to be affected by the evidence, then this testimony might have been unnecessary, and hence its admission erroneous. But as I understand the testimony the value of sheep in the diseased condition in which these were proved to be, was, at the time this testimony was given, an open question. The value of a diseased band of sheep, if the disease is curable, depends among other things upon the cost of the medicines and extra labor and attention in taking care of them, necessary to effect a cure.

No doubt the law of damages is correctly stated by counsel for plaintiff in error in their brief, that "the measure of damage on sale of diseased sheep is the difference in value at the time of the breach and the value if the warranty had been true. But in many cases the law adds to this the reasonable costs of the measures which the injured party is bound to take to lessen the damages."

The rule is thus stated in Sutherland on Damages, vol. 1, p. 148: "The law imposes upon a party injured from another's breach of contract or tort the active duty of making reasonable exertions to render the injury as light as possible. If, by his negligence or willfulness, he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him. This is a practical duty under a great variety of circumstances, and as the damages which are suffered by a failure to perform it are not recoverable, it is a duty of great importance. Where it exists, the labor or expense which its performance involves is chargeable to the party liable for the injury thus mitigated; in other words, the reasonable cost of the measures which the injured party is bound to take to lessen the damages, whether adopted or not, will measure the compensation the party injured can recover for the injury, or the part of the injury, that such measures have or would have prevented." See also cases there cited.

But it was not the warranted sheep only that were involved in the expenditure under consideration. These had been turned in with plaintiffs' original band of sound sheep, which had also become infected with the disease, and the expense of "medicines, ointment, and doctoring" was indiscriminately devoted to the whole band. It will not be questioned that the expense of...