Neibert v. Stone

• Citation: 73 N.W.2d 763,247 Iowa 366
• Decision Date: 13 December 1955
• Docket Number: No. 48816,48816
• Parties: Riley NEIBERT, Appellee, v. Tom STONE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 763

73 N.W.2d 763

247 Iowa 366

Riley NEIBERT, Appellee, v. Tom STONE, Appellant.

No. 48816.

Supreme Court of Iowa.

Dec. 13, 1955.

Stuart & Stuart, Chariton, for appellant.

Hoegh & Meyer, and W. W. Bulman, Chariton, for appellee.

GARFIELD, Justice.

This is a law action by the buyer against the seller of 100 sheep for damages based on the claim defendant delivered to plaintiff other sheep than those agreed upon. Following trial the jury returned a verdict for plaintiff for $4,082 upon which judgment was entered. Upon this appeal defendant urges two grounds for reversal. Both relate to the matter of damages.

I. The second ground for reversal is that plaintiff was not entitled to recover special damages in the form of expenses in feeding, 'doctoring' and caring for the sheep that were delivered since the expenses were incurred after his agent knew their condition. Upon this question defendant cites the annotation in 33 A.L.R.2d 511 and several Iowa decisions. This contention was not presented to or considered by the district court and defendant is therefore not entitled to urge it here. Accordingly we decline to consider it. Rubin Bros. Butter & Egg Co. v. Larson, 245 Iowa 741, 746, 63 N.W.2d 908, 911, and citations; Turner v. Zip Motors, Inc., 245 Iowa 1091, 1101, 65 N.W.2d 427, 433; Jackson Wholesale Florists v. Schappaugh Floral, 246 Iowa ----, 70 N.W.2d 154, 157.

II. Defendant's first ground for reversal is that there is insufficient evidence of the market value of the sheep delivered to plaintiff to support recovery for the difference between the market value of the sheep purchased and of those delivered. This contention was presented to the trial court several times in motions: to direct verdict, to withdraw the above issue from the jury and for verdict (judgment) notwithstanding the jury verdict or for new trial. We hold this ground should be sustained and entitles defendant to a new trial.

The jury was instructed that if plaintiff was entitled to recover, the measure of his damages is the difference between the fair market value of the sheep he purchased and of those delivered by defendant, together with any special damages incurred. (We refer to the special damages in Division I hereof.) The instructions also placed the burden on plaintiff to prove by a preponderance of the evidence, in order to recover, the amount of damages he sustained.

No objection or exception was taken to these instructions by either side and they therefore stand as the law of the case. Nichols v. Kirchner, 241 Iowa 99, 105, 40 N.W.2d 13, 17, and citations; Larimer v. Platte, 243 Iowa 1167, 1170, 53 N.W.2d 262, 264, and citations; Stupka v. Scheidel, 244 Iowa 442, 451, 56 N.W.2d 874, 879.

It is clear that if, as we hold, there is insufficient evidence of the market value of the sheep delivered to plaintiff, the jury should not have been permitted to include in its verdict the difference between the market value of the sheep purchased and of those delivered. Upon that important issue the jury was left to speculation and conjecture. That it is error to submit to the jury an issue without substantial support in the testimony see Reed v. Willison, 245 Iowa 1066, 1073, 65 N.W.2d 440, 444; In re Estate of Hurlbut, 242 Iowa 353, 359, 360, 46 N.W.2d 66, 70; Jakeway v. Allen, 227 Iowa 1182, 1189, 1190, 290 N.W. 507, and citations; 53 Am.Jur., Trial, section 574, page 453; 88 C.J.S., Trial, § 382a and b(3).

Some reference to the evidence as the jury could have found it seems desirable at this point. April 25, 1951, plaintiff, a farmer living near Leesburg, Indiana, enroute to California for an extended stay, stopped to see defendant, a dealer in sheep at Chariton, Iowa. Plaintiff told defendant he wanted to buy 100 Corriedale ewes, two to four years old, weighing not less than 150 pounds, due to have lambs in May. Defendant said he had just what plaintiff wanted and sent his salesman, Loney, to show plaintiff the sheep. An agreement was reached for defendant to deliver to plaintiff's farm in Indiana 100 ewes of the kind and quality plaintiff desired for which plaintiff paid defendant $4,100 and proceeded on his way to California. A hundred ewes were loaded in a truck the next morning and delivered at plaintiff's farm the morning of April 27.

Although evidence for defendant is that the sheep delivered to plaintiff's farm were selected and approved by plaintiff from a flock of a larger number the jury could, and evidently did, find they were not those agreed upon but were much older and of inferior quality. There is substantial testimony they were not Corriedales, were 9 to 14 years old, weighed 60 to 100 pounds, and only 25 lambs were born before May 31. One ewe died April 30, six more in May. Only 54 survived on Novmeber 1 and 44 at shearing time (about the last of May) 1952. Plaintiff's son, whom plaintiff left in charge of his farm, testified the cause of death was lack of teeth and inability to eat. About a third of the 100 ewes limped when delivered. Most of them appeared weak, although some--three in particular--were healthy and strong. Many developed a secondary infection, known as foot-rot, in their feet.

Notwithstanding this showing of inferior quality there is no evidence that all the...