Mousel v. Widicker

• Decision Date: 18 April 1955
• Docket Number: No. 7458,7458
• Citation: 69 N.W.2d 783,53 A.L.R.2d 884
• Parties: R. Wendell MOUSEL, Plaintiff-Appellant, v. Herman WIDICKER, Defendant-Respondent.
• Court: North Dakota Supreme Court

Page 783

69 N.W.2d 783

53 A.L.R.2d 884

R. Wendell MOUSEL, Plaintiff-Appellant, v. Herman WIDICKER, Defendant-Respondent.

No. 7458.

Supreme Court of North Dakota.

April 18, 1955.

Syllabus by the Court.

1. The district court may grant a new trial upon errors in instructions that have been excepted to as provided by law. Section 28-1902, Subsection 7, NDRC 1943.

2. Where a party has made no request for an instruction on a definite issue in a lawsuit he is barred from claiming nondirection on that issue as error, but he is still entitled to assign and urge as error that the charge given amounts to a misdirection.

3. When the evidence discloses that there may have been either express or implied warranty or both of an animal sold for breeding purposes it is the duty of the court to instruct the jury on both kinds of warranty and explain the facts necessary to prove each kind.

4. Instructions should be clear, accurate and concise. They must be understandable and easily and readily applied to the facts under consideration. They should fully cover the claims made by both sides of the case.

5. Instructions which could confuse or mislead the jury and which might have an adverse effect on substantial rights of the complaining party are prejudicial and ground for granting a new trial.

6. A motion for a new trial is addressed to the sound discretion of the trial court. The presumption is that the order granting a new trial was properly granted. Such an order will not be reversed unless the trial court abused its discretion.

7. Instructions examined and found misleading and prejudicial.

Strutz, Jansonius & Fleck, Bismarck, and John A. Layne, Fessenden, for appellant.

John J. Tebelius, Harvey, for respondent.

GRIMSON, Judge.

The plaintiff brings this action on a check issued by the defendant to the plaintiff on April 1, 1952; but post-dated January 1, 1953, in the amount of $2,000. The defendant stopped payment of that check. The complaint alleges presentment for payment, dishonor and notice. Defendant answers with a general denial, admits the check, raises the defense of failure of consideration and counterclaims for $8,000 damages, alleging that the check was given as part payment for a bull sold by plaintiff to defendant for breeding purposes under a warranty of fitness for that purpose, and that the bull was not as represented and warranted and was unserviceable and incapable. Plaintiff replied to the counterclaim with a general denial. The action was tried to a jury which brought in a verdict for the plaintiff. Thereafter the defendant duly made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was denied as no motion for a directed verdict at the close of the evidence had been made. The motion for a new trial was granted on account of misleading instructions on implied warranty. This appeal is from the order granting a new trial and the judgment entered thereon.

The district court may grant a motion for a new trial for errors at law occurring and excepted to at the trial. Section 28-1902, sub-section 7 NDRC 1943. All instructions to the jury are deemed excepted to unless written instructions have been submitted to counsel beforehand when written exceptions must be taken. Section 28-1414 NDRC 1943. The instructions were not submitted to counsel beforehand in the case at bar.

The evidence shows that the plaintiff has been in the business of raising purebred, Hereford cattle and selling them for breeding purposes at Cambridge, Nebraska, since 1925. The defendant farms in Wells County, North Dakota, and for the last ten years has raised and sold purebred, Hereford cattle. In May 1951, plaintiff, at his ranch in Nebraska, sold a bull to defendant, receiving payment in full by cash and an animal traded in. This bull was moved to defendant's farm and in time proved to be unsatisfactory for breeding purposes. Plaintiff furnished defendant a relief bull for a period of six or seven weeks in 1951. Thereafter, and on April 1, 1952, as a result of communications, defendant returned the bull he had purchased to plaintiff and purchased another grown bull for $8,000, receiving credit of $5,000 for the bull returned, paying $1,000 and giving the postdated check sued upon for $2,000. Defendant testifies that this last bull was also warranted but failed as a sire, producing only three calves out of twenty cows.

The plaintiff and appellant in his brief states that the issues 'in the case were as to the serviceability of the bull for breeding, and warranties, either express or implied, in connection with the serviceability.'

The appellant claims that the district court erred in granting a new trial. He specifies as error on this appeal:

'The instructions of the court were neither defective nor insufficient in instructing the jury how and under what conditions the jury might find a verdict in favor of defendant under the evidence tending to prove an implied warranty in the sale of the animal in question.'

The first claim of the plaintiff and appellant is that if there were any errors in the instruction on implied warranty the defendant is now barred from asserting such errors because he failed to make any request of the district court for a more complete instruction on implied warranty.

This court has repeatedly held that where a party fails to request more complete instructions on any matter in issue he cannot afterwards raise the question that the insufficiency of the instruction given amounted to non-direction.

In Burkstrand v. Rasmussen, 77 N.D. 716, 718, 45 N.W.2d 485, 487, it is said that:

'It is a well established rule of law that where a party has made no request for any further or additional instructions, such party cannot upon appeal assign error for nondirection unless it amounts to misdirection.' See also Andrieux v. Kaeding, 47 N.D. 17, 28, 181 N.W. 59; Reineke v. Commonwealth Insurance Co., 52 N.D. 324, 334, 202 N.W. 657; Harmon v. Haas, 61 N.D. 772, 778, 241 N.W. 70, 80 A.L.R. 1131; Jaszkowiak v. Refling, 62 N.D. 601, 606, 245 N.W. 817; Grant v. Jacobs, 76 N.D. 1, 11, 32 N.W.2d 881; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11.

In the instant case no request was made by the defendant for more complete instructions on implied warranty. Under the rule stated in the above cases he is barred from raising any objections to the insufficiency of the charge on implied warranty. However, he is not barred on his motion for a new trial from claiming as error that the instructions the court gave on implied warranty amounted to misdirection. That he has a right to do even though he failed to ask for more complete instructions and is barred from objecting on the grounds of non-direction not amounting to misdirection.

Then the plaintiff and appellant argues 'that no implied warranty was involved in the sale in question, and, therefore the instructions given on this point were prejudicial only to the plaintiff.' He claims that a general rule with respect to sale of animals for breeding purposes is that no implied warranty as to fertility is given. As authority for that claim he cited Frederickson v. Hackney, 159 Minn. 234, 198 N.W. 806, 807. In that case, however, the sale involved a bull calf only a few days old and the court found there was no evidence on which to base an express warranty. Then the court says:

'Implied warranties ordinarily speak concerning the present and give assurance only as to qualities existing at the time being. They do not ordinarily speak of the future, nor of qualities later to be developed.'

For that reason the court held that in that particular case no implied warranty existed. In McQuaid v. Ross, 85 Wis. 492, 55 N.W. 705, 22 L.R.A. 187, also cited by plaintiff the court found no evidence to warrant the finding of any express or implied warranty and therefore the rule of caveat emptor applied. The plaintiff further cites the case of White v. Stelloh, 74 Wis. 435, 43 N.W. 99, as authority for that rule but that case involved a three months old Holstein bull calf and the court held that 'it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale, and that there was an implied warranty that he would possess the power of procreation at maturity.' These cases are not in point under the facts in the case at bar. The bull here involved was a mature bull and was intended for immediate service.

The plaintiff-appellant also claims that the situation arising at the sale of an animal for breeding purposes is similar to that of a sale of an article with latent defect and does not apply in the sale of an animal in apparent good health when the buyer has an opportunity to inspect and the seller is not aware of the defect and the buyer is not relying on the seller's skill and judgment. The facts in all the cases cited, however, differentiate those cases from the case at bar. That rule does not apply under the facts in this case.

Implied warranty is clearly raised in the evidence. Plaintiff testified that he was and had been all his life engaged in the business of raising registered, Hereford cattle and was now engaged in selling pure bred bulls. He admitted that he knew defendant was purchasing a bull intending to use him for breeding purposes and that he sold him a bull for that purpose, giving assurance that the bull was fit for the purpose for which it was purchased. Defendant testified with more force on the same subject and that on the strength of what plaintiff said he bought the bull.

Section 51-0116, Sub. Section 1, NDRC 1943, provides that:

'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he is the grower or manufacturer or not, there is an implied warranty that the goods shall be...