Ralston Purina Co. v. Swaithes, 19719.

• Decision Date: 20 May 1940
• Docket Number: No. 19719.,19719.
• Citation: 142 S.W.2d 340
• Parties: RALSTON PURINA CO. v. SWAITHES.
• Court: Missouri Court of Appeals

142 S.W.2d 340

RALSTON PURINA CO. v. SWAITHES.

No. 19719.

Kansas City Court of Appeals. Missouri.

May 20, 1940.

Rehearing Denied July 1, 1940.

Appeal from Circuit Court, Caldwell County; Ira D. Beals, Judge.

"Not to be published in State Reports."

Action by Ralston Purina Company against Clifton Swaithes to recover the balance of the purchase price of hog feed, wherein defendant filed a counterclaim. From a judgment of the circuit court for plaintiff for $52.05, and for defendant on his counterclaim in the amount of $197.10, plaintiff appeals.

Affirmed.

L. W. Rodekohr and Granoff & Meyerhardt, all of Kansas City, for appellant.

Dean Frazier, of Kansas City, for respondent.

CAMPBELL, Commissioner.

This action was brought in the court of a justice of the peace to recover the sum of $59.31, with interest, alleged to be due under the provisions of a written instrument signed by the defendant, and in which it is recited that defendant purchased from plaintiff 9 tons of hog fatena feed for $450, plus sales tax; that said feed would be fed to 35 hogs, owned by defendant; that the hogs would be marketed through Oren Live Stock Commission Company, St. Joseph, Missouri; that defendant assigned to plaintiff $450 of the amount for which the hogs would be sold, which amount the Commission Company would pay to plaintiff. The Commission Company accepted the instrument. The instrument does not by its terms obligate plaintiff to do anything.

The defendant filed a counterclaim upon the theory the transaction was induced by fraudulent representation of plaintiff concerning the quality of the feed, and upon the theory of a breach of warranty, and prayed judgment for actual damages in the sum of $125.

Trial in justice court resulted in a judgment for defendant, from which the plaintiff appealed.

The verdict and judgment on trial with a jury in the circuit court were for the plaintiff on its cause of action in the sum of $52.05, and for the defendant on his counterclaim in the amount of $197.10. Plaintiff has appealed.

The evidence shows the first delivery of feed was on or about August 14, 1936; that at that time defendant, an experienced breeder and feeder of hogs, owned 35 healthy Hampshire hogs, each weighing about 50 pounds; that the hogs, in a few days after they were fed fatena, began to "scour"; that after feeding the product for 105 days defendant sold 30 of the hogs to the Commission Company for $8.35 a hundred weight, a total of $385.17, which amount was paid to plaintiff; that 5 of the hogs not being "eligible" at that time were later sold to the Commission Company for $19.11, which amount was paid to plaintiff.

The evidence further shows that at the time the instrument was signed the plaintiff's agent stated to defendant that fatena was a whole and complete feed, "would compare with any feed" defendant could obtain.

Other pertinent facts will be referred to in the course of the opinion.

Plaintiff contends the evidence was not sufficient to support defendant's counterclaim for the reasons (1) that the statement the feed would compare with any feed defendant could obtain "was a mere puffing statement and not a warranty"; (2) "an express warranty as to the quality of the feed having been given, and no representation as to any specific rate of gain having been made, none could be implied"; (3) "defendant's evidence showed that the feed was sufficient, when fed alone without the use of any other feed, to sustain and nurture his hogs, and was therefore a whole feed as warranted."

It may be the statement that the feed would compare with any other feed was mere "puffing", but the statement that fatena was a whole and complete feed was a warranty. That statement must be considered with the fact the feed was furnished under the express agreement the hogs would be sent to market and the proceeds of sale paid to plaintiff by the purchaser. Thus plaintiff understood and had the right to understand defendant told him that fatena was the only feed he need supply his hogs in order to prepare them for market. This view is supported by the evidence of plaintiff's director of research who testified that fatena was "a whole feed, suitable for an entire ration from the time the pig was weaned to the time he is ready to go to market." The evidence shows that hogs, such as defendant had, when fed a whole and complete feed would each gain one and three-fourths to two pounds each day; that the 30 hogs defendant sold gained while they were fed fatena slightly more than a pound each a day; that the 5 last sold gained less than a pound...