Ralston Purina Co. v. Swann

• Decision Date: 06 April 1942
• Docket Number: No. 20084.,20084.
• Citation: 161 S.W.2d 39
• Parties: RALSTON PURINA CO. v. SWANN et al.
• Court: Missouri Court of Appeals

161 S.W.2d 39

RALSTON PURINA CO. v. SWANN et al.

No. 20084.

Kansas City Court of Appeals. Missouri.

April 6, 1942.

Appeal from Circuit Court, Nodaway County; Ellis Beavers, Judge.

"Not to be published in State Reports."

Action by Ralston Purina Company against Clarence Swann and another for purchase price of certain hog feed wherein defendants filed a counterclaim. From an adverse judgment plaintiff appeals.

Reversed and remanded with directions.

Newbill & Brannock, of Kansas City, Ellis G. Cook, of Maryville, and Cottrell Fox, of St. Louis, for appellant.

A. F. Harvey and Wright & Ford, all of Maryville, for respondents.

CAVE, Judge.

This is an appeal from a judgment of the Circuit Court of Nodaway County. The parties will be referred to as plaintiff and defendants. Plaintiff's amended petition declared on two written orders of sale of certain hog feed to defendants and sought to recover the balance due of $207.49, after giving credit for certain payments. Defendants answered by general denial and a counterclaim for damages in two counts. The first count charged fraud and deceit, and the second charged breach of warranty.

The cause was tried to a jury and, at the close of the case, the court instructed the jury to find for the plaintiff for the amount claimed, $207.49, and sustained an instruction in the nature of a demurrer to the second count of the counterclaim, but submitted the issues of the first count to the jury, resulting in a verdict thereon in favor of defendants in the sum of $225. Judgment was entered accordingly, plaintiff filed motion for new trial, which was overruled and appeal taken. Defendants have not favored us with a brief.

Plaintiff charges the court erred in refusing its demurrer offered at the close of the evidence as to the first count of the counterclaim, because defendants' evidence disclosed that they did not rely on the statements and representations made by plaintiff's alleged agent. After examining the record before us, we conclude plaintiff's position is well taken.

Defendant Swann testified that, in the latter part of July, 1936, a man by the name of Duke operated a feed store at Bolckow, Missouri, and, among other things, sold Purina hog feed, and that in July, 1936, Duke came to his farm to sell him a hog feed known as Hog Fatena. Duke stated to him that this was a whole and complete feed and that 300 pounds of feed would put on 100 pounds of pork. "He told me different parties that had fed it. He named some of them. I think Mr. Wood was one. When he said 300 pounds of feed would put on 100 pounds of pork, I didn't believe it." The court then asked Swann this question: "When he told you 300 pounds of this feed would make 100 pounds of pork, did you believe it? A. In the first conversation I didn't believe it." Swann testified further that in August a man by the name of Davis, who he identified as an employee of Duke, came to his farm and talked with him about buying this hog feed and Davis told him that 300 pounds of the feed would put on 100 pounds of pork, and told him of a number of farmers who had fed it and gotten that result. Swann knew Davis and believed what Davis told him about it, and signed an order for the hog feed. Defendant Goodman, who owned a one-third interest in the hogs, was not present at the time of the conversation with Duke, but was present the day...