McMaster v. Warner

• Decision Date: 21 July 1927
• Docket Number: 4318
• Citation: 258 P. 547,44 Idaho 544
• Parties: C. A. MCMASTER, Respondent, v. L. A. WARNER, Appellant
• Court: Idaho Supreme Court

258 P. 547

44 Idaho 544

C. A. MCMASTER, Respondent, v. L. A. WARNER, Appellant

No. 4318

Supreme Court of Idaho

July 21, 1927

SALES-DOCTRINE OF IMPLIED WARRANTY, HOW FOUNDED-EVIDENCE-VERDICT OR FINDING ON LAW AND EVIDENCE-NO RECOVERY FOR DAMAGES ON THEORY OF BREACH OF IMPLIED WARRANTY.

1. Doctrine of implied warranty is founded on actual or presumed knowledge by vendor, and does not impute knowledge as to qualities or fitness which no human foresight or skill can attain and raise an implied warranty in respect to them, when vendor and purchaser are in equal condition as to means of knowledge.

2. Any party to law action has right to insist on a verdict or finding based on law and evidence in the case and not, in absence of evidence, on mere inference or conjecture.

3. Where thoroughbred heifer developed lump-jaw eight or nine months after sale, buyer held not entitled under evidence to recover for damages resulting on theory of breach of implied warranty.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Sweeley & Sweeley and Stephan & North, for Appellant.

Representations made by respondent constitute an express warranty. (35 Cyc 386 and 388; Young v. Van Nata, 113 Mo.App. 550, 88 S.W. 123; Ellison v. Simmons, 6 Penne. (Del.), 200 65 A. 591; 24 R. C. L. 164; Powell v. Chittick, 89 Iowa 513, 56 N.W. 652; Mitchell v. Pinckney, 127 Iowa 696, 104 N.W. 286; Swift & Co. v. Redhead, 147 Iowa 94, 122 N.W. 140; McClintock v. Emick, 87 Ky 160, 7 S.W. 903; Luitweiler Pumping Engine Co. v. Ukiah Water Imp. Co., 16 Cal.App. 198, 116 P. 707, 712; Shuman v. Heater, 76 Neb. 119, 106 N.W. 1042; Chestnut v. Ohler (Ky.), 112 S.W. 1101.)

An implied warranty arises out of a state of facts which show that it was the intention of the parties at the time of the sale that the article was to be fit and suitable for the purpose for which it was purchased. (35 Cyc. 388 and 399; 24 R. C. L. 187; Breen v. Moran, 51 Minn. 525, 53 N.W. 755; Wolsey v. Zieglar, 32 Okla. 715, 123 P. 164; Morse v. Union Stock Yards, 21 Ore. 289, 28 P. 2, 14 L. R. A. 157; Bunch v. Weil Bros. & Bauer, 72 Ark. 343, 80 S.W. 582, 65 L. R. A. 80; Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 16 Am. St. 753 and note, 23 N.E. 372; Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 187 P. 319; Shaw v. Smith, 45 Kan. 334, 25 P. 886, 11 L. R. A. 681; Edwards v. Dillon, 147 Ill. 14, 37 Am. St. 199, 35 N.E. 135; Grisinger v. Hubbard, 21 Idaho 469, Ann. Cas. 1913E, 87, 122 P. 853.)

Appellant properly pleaded and proved warranty and breach of warranty and damages. (35 Cyc. 423 and 446 (H); Frey v. Failes, 37 Okla. 297, 132 P. 342; 24 R. C. L. 164; Luitweiler Pumping Engine Co. v. Ukiah Water Imp. Co., supra; McCann v. Ullman, 109 Wis. 574, 85 N.W. 493.)

Whether there were a warranty of the animal in question and a breach of warranty were questions of fact for the jury. (35 Cyc. 481; 24 R. C. L. 165, par. 438; Woolsey v. Zieglar, supra; McDonald Mfg. Co. v. Thomas, 53 Iowa 558, 5 N.W. 737; McLennan v. Ohmen, 75 Cal. 558, 17 P. 687; Unland v. Garton, 48 Neb. 202, 66 N.W. 1130; Hodges v. Smith, 158 N.C. 256, 73 S.E. 807.)

Bothwell & Chapman, for Respondent.

There is no implied warranty as to a latent defect, of which, in the nature of things, the seller could not, and did not, have knowledge. (Cooley on Torts, 403; 2 Cyc. 333; 35 Cyc. 376, 410, 412, 450; 24 R. C. L. 179, 202; Haines v. Rowland, 35 Idaho 481, 207 P. 428; Dorsey v. Watkins, 151 F. 340; Court v. Snyder, 2 Ind.App. 440, 50 Am. St. 247, 28 N.E. 718; Snowden v. Waterman, 100 Ga. 588, 28 S.E. 121; Shaw & Shaw v. Jacobs, 89 Iowa 713, 48 Am. St. 411, 55 N.W. 333, 56 N.W. 684, 21 L. R. A. 440; Rhynas v. Keck, 179 Iowa 422, 161 N.W. 486; Burnett v. Hensley, 118 Iowa 575, 92 N.W. 678; Farrar v. Peterson & Co., 72 Wash. 482, 130 P. 753, 133 P. 594, 44 L. R. A., N. S., 1092; Lambert v. Armentrout, 65 W.Va. 375, 64 S.E. 260, 22 L. R. A., N. S., 556; Newell v. Clapp, 97 Wis. 104, 72 N.W. 366; White v. Stelloh, 74 Wis. 435, 43 N.W. 99; McQuaid v. Ross, 85 Wis. 492, 39 Am. St. 864, 55 N.W. 705, 22 L. R. A. 187.)

By his evidence that the defect complained of was obvious and discoverable on simple inspection and was, in fact, observed at a considerable distance by the witness, James Wallace, and in the absence of both allegation and proof of either knowledge or fraud on the part of respondent, there is no implied warranty as to such defect and the doctrine of caveat emptor applies. (35 Cyc. 410-412; Ehrsman v. Brown, 76 Kan. 206, 91 P. 179, 15 L. R. A., N. S., 877; Burnett v. Hensley, supra; Hanson v. Hartse, 70 Minn. 282, 68 Am. St. 527, 73 N.W. 163; Dorsey v. Watkins, 151 F. 340.)

Appellant failed to prove that he sustained any damage from any wrongful act of respondent, but the evidence conclusively and affirmatively shows that the damage suffered by him was the direct result of his own negligence and want of care. The evidence does not establish any legal or proper measure of damages. (17 C. J. 753, 754, 756, 759; American Exchange Bank v. Goubert, 67 Misc. 602, 124 N.Y.S. 817.)

The court properly directed the verdict in favor of plaintiff upon failure of defendant to prove the allegations of his counterclaim and cross-complaint by any evidence sufficient to support a verdict in his favor. (Holt v. Spokane & Palouse Ry. Co., 4 Idaho 443, 40 P. 56; Libby v. Pelham, 30 Idaho 614, 166 P. 575; Milner v. Pelham, 30 Idaho 594, 166 P. 574; Jensen v. McConnell Bros., 31 Idaho 87, 196 P. 292; Lane v. Oregon Short Line R. Co., 34 Idaho 37, 41, 15 A. L. R. 197, 198 P. 671; Crabill v. Oregon Short Line R. Co., 34 Idaho 251, 200 P. 121.)

"In an action by the vendee of personal property for breach of warranty, it must be alleged that the vendee believed and relied upon, and purchased on the strength, of such warranty." (Haines v. Rowland, 35 Idaho 481, 207 P. 428.)

Where the buyer of goods relied on his own examination prior to the purchase, and was induced to buy on his own judgment from the examination, he has no claim for breach of warranty, express or implied, against the seller." (Casazza v. Rosenblum, 180 N.Y.S. 253.)

MCNAUGHTON, Commissioner. Varian and Brinck, CC., concur.

OPINION

MCNAUGHTON, Commissioner.--

This was an action before the district court, sitting with a jury, on a promissory note due on or before January 1, 1920, for $ 3,000 with interest, and providing for reasonable attorney's fees in case of suit. The note was given by defendant to plaintiff in settlement for pure-bred cattle sold defendant. Defendant admits executing and delivering the note but denies there is anything due plaintiff, and in this connection sets up a counterclaim in the amount of $ 8,609.80, alleged as due defendant from plaintiff on account of an alleged breach of an implied warranty of a heifer sold defendant by plaintiff in January, 1919. Defendant asks judgment in the amount of the difference between the sum of the note and interest and the amount of the counterclaim.

The note with a computation of interest was introduced in evidence and a stipulation was made that in case of recovery by plaintiff, attorney's fees should be fixed by the trial judge. After receiving the evidence on the counterclaim, the jury upon motion was instructed that the evidence was insufficient to support the allegations of the counterclaim and to return a verdict for plaintiff in the sum of said note and interest. The court allowed $ 500 attorney's fees, and judgment for these sums was entered. Defendant's motion for a new trial was denied, and the case is here on appeal from said judgment and the order denying the motion for a new trial.

Error is predicated upon the action of the trial judge in instructing the jury to return a verdict for plaintiff and denying defendant's motion for a new trial.

The evidence discloses that in January, 1919, and prior thereto, appellant Warner was the owner of a ranch near Buhl embracing three or four hundred acres of rather high priced land thought to be suitable for the breeding of purebred cattle, and that then and for some time previous respondent had been engaged in the business of breeding registered Shorthorn cattle near Twin Falls, Idaho. Appellant discussed with respondent the matter of entering into this business and it was recommended by respondent as more profitable on high priced land than grain farming. Appellant viewed respondent's cattle prior to the auction sale held on January 15, 1919, in company with respondent, and at that time a heifer named "Golden Lady" was recommended by respondent as a high class animal and one for which appellant should bid as high as $ 300, if he wanted any cattle at all. Some fifty head of cattle were sold in the auction ring on January 15, 1919. Appellant bought six at this sale, five of which had been consigned by respondent, and one by a third party. Among those purchased by appellant was this heifer, "Golden Lady," consigned to the sale by respondent, the purchase price being $ 285, all or part of this sum being included in the note. She was taken to appellant's place that day or the next.

The evidence shows she was well bred, well built and a high class heifer in apparent good health on the day of the sale. She was put in the yard maintained for pure-breds at appellant's place and was daily under the care of appellant's herdsman, or foreman. She remained apparently sound and healthy through the latter half of January, and through February, March and April. In May she dropped a calf which was sound and healthy. The heifer gave more milk than this calf could take during the first four or...