Perry v. Van Matre

• Citation: 161 S.W. 643,176 Mo. App. 100
• Parties: PERRY v. VAN MATRE.
• Decision Date: 11 December 1913
• Court: Court of Appeal of Missouri (US)

161 S.W. 643

176 Mo. A. 100

PERRY v. VAN MATRE.

Springfield Court of Appeals. Missouri.

December 11, 1913.

1. APPEAL AND ERROR (§ 699)—PRESENTATION FOR REVIEW—INSTRUCTIONS.

Where the record shows that instructions were given which are not brought up, there can be no reversal for error in instructions, unless substantially prejudicial.

2. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS.

Where, in an action on a note for the price of a jack, plaintiff admitted an express warranty that the jack was sound and a good breeder, an instruction on implied warranty, though not warranted by the evidence, was harmless, and under R. S. 1909, §§ 2082, 1850, requiring that errors not injurious be disregarded, was not ground for reversal.

3. APPEAL AND ERROR (§ 1032)—PREJUDICIAL ERROR—PRESUMPTION.

Where appellant complains of the giving of an instruction, he must show, not only that it was erroneous, but that it was prejudicial.

4. SALES (§ 446) — ACTION FOR PRICE — INSTRUCTIONS —EVIDENTIARY MATTERS.

Where, in an action on a note given for a jack, the answer alleged breach of a warranty that the animal was a good breeder and sound, and pleaded evidence of the details of the unhealthy condition, instructions relative to the warranty were not erroneous for failure to include such evidentiary matters, which were disputed, and tell the jury that if these matters were established, the animal was unhealthy.

5. SALES (§ 446) — ACTION FOR PRICE — INSTRUCTIONS —VARIANCE.

Where, in an action for the price of a jack, defendant testified that plaintiff represented the jack as a great breeder, it was not error to use the term "great breeder" in an instruction on the warranty, though the warranty

as pleaded in the answer was that the jack was a "good breeder and a sure foal-getter."

6. SALES (§ 279)—WARRANTY — CONSTRUCTION —"GOOD BREEDER"—"GREAT BREEDER."

There is no difference between a warranty that a jack is a "good breeder" and a warranty that he is a "great breeder," except possibly in degree; if there is any difference, a great breeder would be a more than ordinarily good breeder.

7. SALES (§ 446)—ACTION FOR PRICE—CONFLICTING INSTRUCTIONS.

Where, in an action for the price of a jack, the warranty set up in the answer was double, that the animal was sound and that he was a good breeder, and plaintiff secured an instruction predicated upon only one-half of such warranty, an instruction given for defendant, and covering the entire warranty, was not erroneous as conflicting with plaintiff's instruction; it being no objection to an instruction, correct in itself, that it conflicts with erroneous instructions.

8. SALES (§ 446) — ACTION FOR PRICE — INSTRUCTIONS.

Where, in an action for the price of a jack, the warranty set up in the answer was double, an instruction which, though purporting to cover the case and directing a finding, covered only one-half of such warranty, was erroneous.

9. SALES (§ 446) — ACTION FOR PRICE — INSTRUCTIONS.

In an action for the price of a jack, an instruction to find for defendant if plaintiff warranted the animal to be sound and a good breeder, and he was not such, was not erroneous for failure to fix any time at or within which the warranty must be found to be operative, since the jury must have understood from the language used that the condition must have existed at the time of the sale.

10. PLEADING (§ 34)— ANSWER — CONSTRUCTION —"DISEASE."

The word "disease," as used in an allegation of the answer in an action for the price of a jack, that the jack was not a good breeder and sure foal-getter because of the disease, meant any derangement of the functions or alteration of the structure of the animal organs, a morbid condition, resulting from some functional disturbance, or failure of physical condition which tended to undermine the constitution.

11. SALES (§ 441) — ACTION FOR PRICE— BREACH OF WARRANTY — SUFFICIENCY OF EVIDENCE.

Evidence, in an action for the price of a jack, wherein the defense was breach of a warranty that the animal was sound and a good breeder, held to sustain a finding that the animal, on the date of sale was diseased, and thereby rendered unfit for breeding purposes.

12. SALES (§ 284) — ACTION FOR PRICE— BREACH OF WARRANTY — WHAT CONSTITUTES.

Where an animal warranted to be of sound and healthy condition has within it, on the date of the sale, the seeds of disease from which a condition of unfitness develops, there is a breach of the warranty.

13. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR — ADMISSION OF CUMULATIVE EVIDENCE.

The admission of evidence as to a matter concerning which another witness had testified fully without objection, if erroneous, was harmless.

14. APPEAL AND ERROR (§ 1048)—HARMLESS ERROR—EXAMINATION OF WITNESS.

Error in overruling an objection to a question is harmless, where the question is not answered.

Appeal from Circuit Court, McDonald County; Carr McNatt, Judge.

Action by E. N. Perry against F. M. Van Matre. From judgment for plaintiff for less than was claimed, plaintiff appeals. Affirmed.

J. A. Sturges, of Pineville, for appellant. O. R. Puckett, of Pineville, for respondent.

FARRINGTON, J.

Rube, a big Kentucky jackass, is the subject of this action. Rube died before the litigation commenced, and knows nothing of the trouble he left behind. An alleged warranty concerning what he was and what he was capable of doing at the time he was sold to defendant by the plaintiff is presented for review. The petition counts on a note for $1,000, given by defendant to plaintiff in consideration of two jacks, Rube and Frank, on which note with interest, after deducting credits, there was alleged to be due the sum of $750. Defendant in his answer admitted buying the jacks and executing the note, but pleaded: "That said jacks were purchased to be used for breeding purposes, and to be stood by defendant at his farm in this county and to be let to service of mares on custom for profit, which fact was well known to plaintiff at the time; that plaintiff, well knowing the purpose for which defendant wanted said jacks, and in order to induce him to make said purchase, represented to defendant that said jacks were sound and healthy, and the larger jack, Rube, was a good breeder and sure foal-getter, and defendant, relying on plaintiff's said representations, was induced thereby to purchase said jacks and execute the note sued on; that the jack Rube was unsound and unhealthy, was not a good breeder, and was not a sure foal-getter; that he was infected by a secret malady and an undeveloped latent disease at the time, and shortly thereafter his legs and body broke out in enormous sores, his hair came off in large quantities, he refused to eat, and continued to decline from the date of his purchase until the month of October, 1910, when he died. That the mares served by him failed to get with foal, and he was worthless for the purpose for which he was purchased, or for any other purpose. That the relative value of the jack Frank does not exceed $500 on the basis of the agreed value of $1,000 for the two jacks. Wherefore defendant says that after deducting the credits indorsed on said note, he is indebted to plaintiff in the sum of $67.55." The reply is not set out in the abstract, but it is stated that the reply denied each and every allegation as to failure of consideration. The jury returned a verdict for plaintiff for $67.55, and the case is here on his appeal.

Defendant's testimony as to the warranty is as follows: "He represented this jack Rube as a great breeder and a sure foal-getter and sound and all right. Q. I believe you said these representations as to his being a good breeder and a sound animal were made by Mr. Perry before you bought the jack? A. Yes, sir." Plaintiff as a witness did not deny this. Indeed, there is at no place in the record a denial that plaintiff made the warranty set up in defendant's answer. Plaintiff proceeded at the trial on the theory of admitting the making of the oral warranty, but denying that a breach had occurred. Plaintiff and his witnesses testified that the jack, at the time of the sale and at different times during the year 1909 after defendant bought him, was fat, in good flesh, in good condition, in good life, quick to serve, appeared healthy, and had no scars or sores.

As appellant's assignments of error do not require a detailed review of the evidence introduced at the trial, it is enough to say that as to the jack's condition at the time of the sale, and for some months thereafter, the evidence is in irreconcilable conflict. The purchase occurred at plaintiff's farm in Arkansas on March 16, 1909, and the jack died at defendant's farm in Missouri in October, 1910.

As it will be necessary to refer to the instructions from time to time throughout the opinion, they are here set out.

The court, at plaintiff's request, gave this instruction: "(1) The note sued on in this case was given as the purchase price of two jacks sold by the plaintiff to the defendant, and defendant seeks to avoid the payment of the balance due on the note on the ground that one of the jacks was diseased at the time of the sale, and finally died of such disease. You are therefore instructed that it rests on the defendant to prove to your satisfaction by a preponderance of the evidence that the disease from which the jack died was not caused by the acts or treatment of him by the defendant, but existed at the time of such purchase and giving of said note."

The court, at defendant's request, gave these instructions:

"(A) The court instructs the jury that one who sells personal property to be used for a particular purpose impliedly warrants that it is reasonably suitable for the use and purpose for which it is sold and purchased; therefore, if the jury believe and find from the evidence in this case that the note sued on was given for the purchase of two jacks, to be used and stood for breeding purposes, and to be let...