Needham v. H. S. Halverson & Co.

• Decision Date: 15 February 1912
• Citation: 22 N.D. 594,135 N.W. 203
• Court: North Dakota Supreme Court
• Parties: NEEDHAM v. H. S. HALVERSON & CO.

22 N.D. 594

135 N.W. 203

NEEDHAM

v.H. S. HALVERSON & CO.

Supreme Court of North Dakota.

Feb. 15, 1912.

Syllabus by the Court.

In an action on the contract to recover for the breach of a warranty in a sale of glandered horses, with knowledge that such horses are to be mingled with others, damages may be recovered both for the loss of the horses originally sold and purchased and of others with which they have been mingled, and to which they have communicated the disease, and also for the reasonable expense of caring for such animals, of burying the same, and of fumigating and disinfecting the premises.

Similar damages may also be recovered in an action of tort which is based upon the theory of a false and fraudulent sale and warranty, with knowledge of the existence of the disease, and are deemed proximate.

Such damages may include compensation for the hire of men and the value of the use of the time of the farmer or purchaser in caring for and burying such horses and in disinfecting his premises, and the reasonable cost of medicines and drugs and veterinary attendance. They will not, however, include damages for the loss of the use of teams which, it is claimed, might otherwise have been used by the men so employed in caring for the animals, or for possible breaking and plowing which might possibly have been done by such farmer if he had not been so employed in caring for his horses, nor for the loss of crops which might have been grown upon land which he might have plowed and seeded if not so occupied. Such damages are neither proximate, so as to be recoverable in a tort action, nor can they be deemed to have been within the contemplation of the parties at the time of the making of the contract, so as to be recoverable in an action for the breach of the warranty.

Where evidence tended to show that horses were sold, warranted to be free from glanders, and the vendor retained a chattel mortgage on the same, held, that the admission of an agent of the vendor, who was sent out to prevent the destruction of said horses by the state veterinarian, that, prior to the sale, the said horses were infected, and he knew that fact, was admissible against the vendor in an action for breach of warranty and for fraudulent representations as to the freedom of the horses from the disease of glanders.

Additional Syllabus by Editorial Staff.

The joinder of causes of action by a purchaser, in contract for breach of warranty and in tort for false and fraudulent warranty, is proper.

In an action by a purchaser of horses for breach of warranty and for false and fraudulent warranty, testimony by plaintiff, without preliminary foundation laid, except proof that he was a farmer and the owner and purchaser, as to the market value of the horses, was admissible.

Appeal from District Court, Barnes County; Burke, Judge.

Action by W. H. Needham against H. S. Halverson & Co. From a judgment for plaintiff, defendant appeals. Affirmed on condition.

This is an action to recover damages occasioned by the sale of glandered horses. In the complaint, two causes of action are joined, one in contract for breach of a warranty that the said horses were free from disease, and one in tort for a false and fraudulent warranty and statements of facts in relation to glanders, and a sale as a result thereof. Verdict and judgment were rendered for the plaintiff in the sum of $1,043.90, and defendant appeals.L. N. Miller and V. R. Lovell, for appellant. Lee Combs, for respondent.

BRUCE, J. (after stating the facts as above).

[5] Defendant contends that the trial court erred both in refusing to compel plaintiff to elect under which of said causes of action he would proceed, and in not refusing to admit any evidence under the complaint on account of the alleged misjoinder of causes of action. There was no misjoinder; and the court did not err. “In the sale of a horse,” says Mr. Phillips on page 184 of his work on Code Pleading, “the vendor may make both a false warranty and a false representation, and thus become liable to the vendee for the deceit and for the breach of the warranty, and the vendee would, correspondingly, have two grounds of recovery, but would be entitled to only one relief in damages. The vendee in such a case can maintain an action based upon either right of action alone, or, since both rights of action arise out of the same transaction, he may base his action upon both grounds, stating them in separate causes of action. One of these two rights of action would arise from tort, the other from contract.” See, also, 1 Pom. Rem. 467; Humphrey v. Merriam, 37 Minn. 502, 35 N. W. 365;Robinson v. Flint, 7 Abb. Prac. (N. Y.) 393, note; Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917;Freer v. Denton, 61 N. Y. 492. These authorities seem to be conclusive upon the proposition.

The remaining questions for us to consider are the admissibility of the admissions of the witness Alfred Jackson, and the question of the measure of damages in the case, and the admission of evidence in regard to value.

[1][2] Provided that both tort and contract causes of action were properly joined in the complaint, which we hold to be the fact, and provided that sufficient evidence was adduced upon the trial, both the tort and the contract measure of damages could be made to apply in this case. Under the facts of the case, and since the witness H. S. Halverson, the secretary and treasurer and manager of the defendant company, testified on the trial that when he sold the horses he knew that “Needham was a farmer, and knew he had horses out there on his farm. I thought he would take these horses out there and work them, and he knew he would mingle these horses with his. I supposed he would do this before I sold him the horses”-there would be but little difference in the measure of damages under each cause of action. The measure of damages in tort, as given by section 6582 of the Code, is “the amount which will compensate for all the detriment proximately caused by the wrongful act, whether it could have been anticipated or not,” and this is merely a restatement of the common-law rule. The measure of damages for breach of contract, as expressed in section 6563 of the Revised Codes of 1905, is “the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin,” and this section has been held to practically restate the common-law rule early laid down in the case of Hadley v. Baxendale that the measure of damages in contract are those damages which were actually anticipated by the parties entering into the contract, or which are so probable and natural that they would have been reasonably anticipated by one entering into the relationship, if he had thought upon the subject. There can be no doubt that under the case of Larson v. Calder, 16 N. D. 248, 113 N. W. 103, the jury were justified in finding that a warranty was made in the premises, and that the horses, when sold, were afflicted with glanders; and we believe that the jury were justified in finding such a fact, even independently of the admissions of the witness Jackson, to which we will later refer. We cannot help but feel, however, that the admissions of the witness Jackson went far to produce this impression in the minds of the jury, and that, if these admissions were inadmissible, the judgment should be reversed.

We, however, do not believe that the appellant is correct in his contention that in this case the only measure of damages is that prescribed by section 6595 of the Revised Codes of 1905, which provides that “in estimating damages the value of the property to a buyer or owner thereof deprived of its possession is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such purchase.” This is the measure by which to determine the value of the property of which the plaintiff is deprived. This statute applies to a case where the seller refuses to convey, and not to a case where a delivery is made and damages result from a breach of warranty of fitness, and the injury occasioned is not merely the loss of the goods sold, but the spread of a contagious disease and injury resultant therefrom.

[4] In considering the admissibility of the admissions complained of, we have to consider the questions: (1) Who was the witness Alfred Jackson, and what relationship did he bear to the defendant corporation; (2) what was the nature of his admissions; and (3) when and where they were made? Who the witness Jackson was, and his relationship to the corporation, may be gathered from the testimony of the witness Halverson. Halverson testified that he himself was the secretary, treasurer, and manager of the defendant company, and that Jackson was working for him. “He [Jackson] had been working for the corporation, and was working at the time that Needham got the horses. When I am away, he has charge of the barn and the procuring and making sales of horses, and had been, on behalf of the defendant company.” Alfred Jackson testified: “I handled and bought and sold horses and cattle for that company. I know where Halverson & Co. got that team. I bought one about 20 miles north of McHenry, and the other I bought from a man by the name of Wentworth. * * * I went out to prevent that one horse being killed. I had received information that it had been condemned by the state veterinarian for glanders, and I went out there to insist upon an examination before it was shot. * * * When I bought those gray horses from that man up north, one of them...