Parker v. Marquis

• Decision Date: 31 October 1876
• Citation: 64 Mo. 38
• Parties: A. H. PARKER, Appellant, v. CHAS. MARQUIS, Respondent.
• Court: Missouri Supreme Court

64 Mo. 38

A. H. PARKER, Appellant,

v.CHAS. MARQUIS, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jasper County Common Pleas Court.

Lay & Belch, for Appellant.

I. The first count setting up a counter-claim in the answer is fatally defective in not averring an offer to return the property on discovery of the fraud. (1 Chit. Cont. [5 ed.], p. 658; Stearns vs. McCulloch, 18 Mo. 411; Johnson vs. Meyer's Ex'r, 34 Mo. 255.) It is also defective in that it does not allege that the disease was not perceptible on the sheep. (Stewart vs. Dugan, 4 Mo. 245; Benj. Sales, 457.)

II. The second counter-claim is defective in that it does not state that the defendant relied on the representations made by the plaintiff.

III. The instructions asked by the plaintiff should have been given. The contract sued on, and the pleadings themselves, show the existence of the facts on which they are predicated. Their refusal simply allows the defendant to reap all the benefits and to bear none of the burdens of the contract.

IV. The third instruction given for defendant is erroneous. By the terms of the contract sued on defendant was bound to care for and feed the sheep. If he could recover at all, it would only be for such care and attention as were made necessary by the disease, over and above the ordinary care and attention.

V. The fourth instruction given for defendant is erroneous. To make a representation ground for action of deceit or fraud, it must have been known to be false, and have been made with intent to deceive and defraud. (Joliffe vs. Collins, 21 Mo. 338; Peers vs. Davis' Adm'rs, 29 Mo. 184.)

E. J. Montague, for Respondent.

I. The matter set up as counter-claim was proper. (2 Wagn. Stat. p. 1016, § 13; Empire Trans. Co. vs. Boggiano, 52 Mo. 294.)

II. Fraud in the transaction, which is the subject of the suit, may be the subject of counter-claim. (Wat. Set-off, Rec. Count. 623, § 612, 2d ed.)

III. It was not necessary that defendant return the sheep, upon discovery of the fraud, to enable him to interpose his defense when sued on the contract. (Wat. Set-off, etc., §§ 493, 495; Sedg. Dam. top p. 312, side p. 296, 3d ed.; Whitney vs. Allaire, 4 Denio, 554.)

IV. The measure of damages as declared by the court below was proper. Damages are the natural and proximate results of the injuries complained of. (Sedg. Dam., 3d ed., top 64, 65, side p. 66, 67.) Time employed and expense incurred in feeding and doctoring the sheep were the natural results of the fraud practiced upon the defendant, and were proper subjects for consideration by the jury in estimating defendant's damage. (Sedg. Dam., 3d ed., pp. 74, 75, 76, 77.)

NORTON, Judge, delivered the opinion of the court.

Plaintiff's action is founded on a written contract in which plaintiff agreed “to furnish defendant with 1134 sheep for one year in good fix,” and to bear half the loss of said sheep from death; the defendant on his part agreeing to take, feed, and care for said sheep for one year, and bear half the loss of the sheep, and to have for his pay one-half the wool and one-half the lambs.

In his petition plaintiff alleged that defendant at the end of the year did not return to him 1134 sheep received by him under the contract, but only returned seven hundred; that defendant did not return to him one-half the lambs, and that he failed to deliver to plaintiff one-half the wool produced from said sheep, by reason whereof he claims the sum of $2,200.

The answer of defendant admits the contract and the receipt of 1134 sheep under it, and after denying all the allegations of the petition, relating to breaches of the contract, sets up in his answer, by way of counter-claim, that the sheep, at the time they were delivered to him, were not in good fix, but were afflicted with a disease known as “ scab;” that plaintiff knew they were thus diseased, and concealed the fact from defendant; that 206 of them died from the effects of the disease, and that defendant was subjected to great expense in feeding and doctoring said sheep, and that by reason of the fraud of plaintiff he was damaged in the sum of $500.

For a further counter-claim the answer charged that at and before the time of entering into said contract, plaintiff, for the purpose of inducing defendant to enter into it, represented and assured him that the ewes among said sheep would not have lambs until March 1869; that such representations were false and fraudulent, and made for the purpose of cheating and defrauding defendant; that all of the lambs that were born of said ewes came in December and February preceding March, 1869, and died in consequence thereof, by which he sustained damages in the sum of $500.

Plaintiff, by replication, denied the allegations of the answer, and on a trial, verdict and judgment for $500 were rendered for defendant, from which plaintiff has appealed to this court.

On the trial of the cause defendant offered evidence tending to show that he had been damaged in expenses of time and money in feeding and doctoring said sheep, and also time in caring for them, and expense of feed. Plaintiff objected to the evidence on the ground that the measure of damages sought to be established by it, was not a proper one, it not having been shown...