Needham v. Dial

• Decision Date: 20 September 1893
• Parties: NEEDHAM v. DIAL.
• Court: Texas Court of Appeals

23 S.W. 240

NEEDHAM v. DIAL.

Court of Civil Appeals of Texas.

September 20, 1893.

Appeal from Robertson county court; O. D. Cannon, Judge.

Action by R. G. Dial against John F. Needham and another. There was a judgment in favor of plaintiff, and defendant Needham appeals. Reversed.

Campbell & Dunn, for appellant. Simmens & Crawford, for appellee.

KEY, J.

This suit was brought by appellee, Dial, against J. E. Schute and appellant, Needham, in justice of the peace court, from which it was appealed to the county court. In the latter court a judgment was rendered in favor of appellee for $121.81, from which this appeal is prosecuted. The statement of the plaintiff's cause of action, as appears in the citation issued by the justice of the peace, is as follows: "Plaintiff alleges that said defendants on and about the 28th day of September, 1889, sold to plaintiff 30 head or more of hogs, at $3.81 per head, to be used by plaintiff at his meat market in Hearne, Tex.; that said hogs, at the time defendants sold to plaintiff, were diseased with cholera, and, immediately after the delivery of said hogs to plaintiff, 30 of said hogs died of cholera; that defendants well knew that said hogs were diseased when they sold them to plaintiff; that plaintiff paid them for said hogs at the time of the delivery. And plaintiff sues for $114.30, the value of said hogs, and for $7.50, cost of hauling off said dead hogs, and $50, damages to plaintiff's business by reason of defendants selling plaintiff diseased hogs." The defendant Needham filed a sworn plea showing that he resided in another county, and negativing all the facts which would confer jurisdiction on the courts of Robertson county, if the suit had been against him alone. He also averred in this plea that he and Schute were not partners; that Schute had no interest in the hogs sold to Dial, and was in no wise liable for any damages resulting from said sale. Schute was sued in the county of his residence, but made default, however, and judgment went against him. The plea referred to did not charge that Schute was made a party for the fraudulent purpose of conferring jurisdiction on Robertson county. For this reason, it was defective, and should not have been sustained, whatever the testimony may have been, tending to show such fraudulent purpose.

It is contended on behalf of appellant that the judgment of the court below is not supported by the testimony, and, after a careful consideration of all the evidence contained in the record, our conclusion is that this contention is correct. There is no pretense that there was any express warranty of the quality, health, or fitness for a particular use of the hogs sold, or that there was any misrepresentation of their condition. Appellee's contention is that, as he was engaged in the market business, and bought the hogs for use in his business, that fact, and the other circumstances of the case, raise an implied warranty that the animals sold to him were suitable for slaughter. There is no conflict in the testimony concerning the material facts. Appellant had a bunch of hogs which he desired to sell. He let it be known that they were for sale; sent word to appellee to come and look at them, which appellee did. Appellee testified that he examined the hogs before he bought them; that they did not appear to be in very good condition; that appellant told him that they did not seem to be doing well in his pen, and he wanted to get rid of them, but did not tell him that they were diseased; that he purchased them for use in his market; that they were of mixed ages, but the most of them were young hogs; that he wanted young hogs, because they would grow; that he paid an average of $3.81 per head for them:...