Proctor v. Reif

• Decision Date: 10 December 1879
• Citation: 52 Iowa 592,3 N.W. 618
• Parties: J. C. PROCTOR, APPELLANT, v. JOHN REIF, APPELLEE.
• Court: Iowa Supreme Court

52 Iowa 592

3 N.W. 618

J. C. PROCTOR, APPELLANT,

v.JOHN REIF, APPELLEE.

Supreme Court of Iowa.

Filed December 10, 1879.

Appeal from Pottawattamie circuit court.

The plaintiff commenced this action against the defendant and one Joseph McCoid. The first count of the petition in substance alleges that the defendants were the owners of a certain sorrel horse, which they sold and delivered to plaintiff and warranted sound; that the defendants well knew that said horse had an infection called glanders, whereof he soon thereafter died, to the damage of plaintiff in the sum of $100. The second count of the petition alleges in substance that the plaintiff was the owner of a certain other horse, which was sound and healthy, and that by reason of the defendant selling and delivering to the plaintiff a horse infected with the glanders, the plaintiff's horse, which, up to that time had been healthy and sound, became diseased with the glanders, of which he died, to plaintiff's damage in the further sum of $100.

The defendant Reif filed his separate answer to the petition, denying every allegation thereof. The defendant McCoid filed his separate answer to the petition, denying each allegation thereof, and by way of cross-petition against his co-defendant (Reif) alleging, in substance, that Reif was the owner of the horse described in the first count of the plaintiff's petition, and sold the same to the defendant, and warranted him to be sound, knowing that he was unsound and afflicted with the glanders; that this defendant afterwards sold said horse to plaintiff not knowing that he was afflicted with said disease; that the horse so sold to plaintiff communicated said disease to another horse owned by plaintiff, of which disease both said horses died. The defendant asks that he have judgment against John Reif for any amount plaintiff may recover against him. The defendant John Reif, for answer to the cross-petition of the defendant McCoid, denies all the allegations thereof. The cause was tried to a jury, and verdicts were returned as follows:

1. For the defendant Reif, as against the plaintiff.

2. For the plaintiff, as against McCoid, in the sum of $200.

3. For the defendant Reif, as against McCoid.”

All these verdicts were set aside in the court below, upon various grounds, except the first. The plaintiff filed a motion for a new trial as between him and the defendant Reif. This motion was overruled, and judgment was rendered against plaintiff, in favor of the defendant Reif, for costs. The plaintiff excepted and appeals.Sapp, Lyman & Ament, for appellant.

John H. Keatley, for appellee.

DAY, J.

1. The bill of exceptions contains a statement as to the evidence introduced, as follows:

“Evidence was introduced by plaintiff tending to establish that, on the fifteenth day of October, 1878, appellee, John Reif, sold to said Joseph McCoid the horse described in the first count of the petition; that at that time said horse had the glanders; that said Reif knew at the time that the horse was thus diseased; that on the nineteenth day of October, 1878, said McCoid sold said horse, together with another horse then owned by him, to the plaintiff, which said other horse is described in the second count of the petition; that said horse was sound at the time said Reif sold said horse to McCoid; that said sound horse became affected with the glanders from said horse sold by Reif to McCoid, and that both said horses died from said disease thus and there contracted. Evidence was introduced by appellee tending to deny that said horse sold by him had the glanders, and also tending to deny that he had any knowledge that the horse was thus diseased. Such was the issue of fact tried to the jury.”

The plaintiff asked the court to give the jury the following instructions.

“3. If you find that in the month of October, 1878, the defendant John Reif sold or traded to the defendant Joseph McCoid one of the horses in controversy herein; that at the time of such transaction said horse was affected with a disease called glanders; that said defendant Reif then knew that said horse was thus affected with said disease; that while said horse was thus affected with said disease said defendant McCoid sold said horse to the plaintiff, and that by reason of said disease said horse has since died or been killed: then the plaintiff is entitled to recover from the said defendant Reif such sum as the evidence before you shall show said horse would have been worth, at the time he was so sold to plaintiff, had he been in sound condition.

4. If you find that in the month of October, 1878, the defendant John Reif sold or traded to the defendant Joseph McCoid one of the horses in controversy herein; that at the time of such transaction said horse was affected with a disease called glanders; that said defendant Reif then...