Reed v. Bunger

• Decision Date: 11 June 1963
• Docket Number: No. 50952,50952
• Citation: 122 N.W.2d 290,255 Iowa 322
• Parties: Walter O. REED, Appellee, v. Oliver H. BUNGER, Appellant.
• Court: Iowa Supreme Court

Page 290

122 N.W.2d 290

255 Iowa 322

Walter O. REED, Appellee, v. Oliver H. BUNGER, Appellant.

No. 50952.

Supreme Court of Iowa.

June 11, 1963.

Kennedy, Kepford, Kelsen & White, Waterloo, for appellant.

Pike, Hoxie, Butler & Teske, Waterloo, and Tony Jack Lyons, Pryor, Okl., for appellee.

GARFIELD, Chief Justice.

This is a law action in three counts by plaintiff Walter O. Reed against defendant Oliver H. Bunger for damages for breach of express oral and implied warranties and fraud in the alleged sale by defendant to plaintiff of 20 heifers. Trial was to the court without a jury. The court found a breach of both express and implied warranties but that fraud was not proven. From judgment for $2422.38 against him defendant appeals. The principal errors assigned challenge the sufficiency of the evidence, in at least three respects, to support the judgment.

These propositions are deemed so well established that authorities need not be cited to support them: The trial court's findings of fact are binding upon us if supported by substantial evidence. In considering defendant's claim he was entitled to a so-called directed verdict we give plaintiff's evidence the most favorable construction it will reasonably bear. Even when the facts are not in dispute or contradicted, if reasonable minds might draw different inference from them, a jury question is engendered. Rule 344(f) 1, 2 and 17, Rules of Civil Procedure, 58 I.C.A.

I. Defendant's first assigned error is that there was no sale of 15 of the 20 heifers on which to base a claim of warranty but the relationship between plaintiff and defendant was that of principal and agent rather than buyer and seller. We hold there is substantial evidence to support the court's finding there was an oral contract for the sale and purchase of the 20 heifers. Defendant admits there was a sale of five of the 20. We may as well summarize the evidence now.

Plaintiff is a farmer and dairyman living near Locust Grove, Mayes County, Oklahoma. In 1959 defendant was a dealer in 'choice dairy cows' at Cedar Falls, Iowa. Plaintiff wanted to buy 20 second-calf heifers, which would each produce at least 40 pounds of milk per day, to add to his herd. Sheriff Weaver of Mayes County had been a dairyman and cattle trader, knew defendant and had bought cattle from him. He referred plaintiff to defendant. October 12, 1959, plaintiff telephoned defendant from Oklahoma and the oral agreement between them was then made.

Plaintiff testifies he told defendant he wanted to buy 20 good, clean second-calf heifers which would each produce 40 pounds of milk a day; defendant said he had five first-calf heifers with good milk production; plaintiff said he would accept the five if they were good, clean first-calf heifers; after further conversation plaintiff asked defendant, 'Would you put the 20 head down here for $6000?; defendant replied, 'I will do her'; defendant asked plaintiff how he would finance these cows; plaintiff replied, 'I will pay for them when they get here'; it was agreed defendant was to have until November 1 to make delivery. (We use 'heifers' and 'cows' here interchangeably as some of the witnesses do.)

Defendant testifies plaintiff instructed him to buy 15 cows to go with the five first-calf heifers and ship them to plaintiff in Oklahoma during October; defendant told plaintiff they would cost what the former paid for them, plus veterinarian's fees, trucking cost and $10 'a cheek' commission. Defendant admits plaintiff asked him, 'Do you think they could be brought here for $300 apiece?; defendant says he replied he didn't think they will cost that much. Defendant also admits he represented to plaintiff the 20 cattle, under proper feeding and handling, would each be capable of producing 40 pounds of milk per day. Plaintiff insists there was no talk of paying defendant a commission or of his going out and buying these cows.

Defendant further testifies he found one of his five first-calf heifers was not suitable for plaintiff's needs, he purchased 16 cows in Minnesota and Wisconsin and they were loaded in a truck October 18 together with his four remaining first-calf heifers for delivery to plaintiff. They arrived and were unloaded about daybreak next morning. Plaintiff testifies he was not then present but observed the cows about 8 that morning, saw they were not what he ordered and informed the trucker to so advise defendant. (Defendant made arrangements for the trucking). Plaintiff went to the FHA office in Pryor where he had arranged for a loan to pay for the cattle. He says the FHA supervisor advised him to pay for them because they were warranted and the Oklahoma quarantine law prohibited returning them to Iowa for 45 days. About noon on October 19 plaintiff gave the trucker a check, signed by plaintiff and the loan supervisor, payable to defendant, for $6055.

The trucker delivered to plaintiff an invoice of the cattle written by defendant, dated October 18, the total of which was $6055. Opposite this total was written, 'Thanks. Oliver.' At the bottom of the exhibit this was written, 'These cows come a little higher than I said over the phone but are some larger * * *.' Defendant received and cashed the check.

The first of the 20 cows plaintiff milked gave bloody milk, the milk of four others contained chunks and clots which stopped up the strainer, one other did not have a normal bag. Only seven of the 20 were fresh--capable of giving milk. There is much evidence all but five of the cattle were older than represented or infected with mastitis, a disease which renders the milk unfit for consumption.

Plaintiff says he wrote defendant October 27 the cows were not what he ordered and he wanted defendant to get them. He received no reply. After three unsuccessful efforts to get defendant by phone plaintiff succeeded on November 9, told him he was going to return the cows (except the five satisfactory ones) or he could get them, that 'they were with mastitis and old age' and threatened suit if defendant would not accept the 15. Plaintiff testifies defendant asked that Sheriff Weaver 'month the cows and if they are like what you said I will make it right.' Plaintiff was unable to get the sheriff to examine the cows until December 9. Two veterinarians and the sheriff (all three testify for plaintiff) then examined the 15 cows and found them old and the majority infected with mastitis. The day after the cattle were delivered another veterinarian looked at them and prescribed medicine for those with mastitis. Plaintiff administered the medicine for two months without success.

Defendant testifies the reason he gave plaintiff for refusing to accept return of the cattle is that they had then been away from defendant's place too long. So far as appears, the contention defendant acted as plaintiff's agent in purchasing 15 (or 16) cows was not asserted until the evidence was about closed. It was then stated in an amendment to answer and a motion 'for directed verdict.'

Defendant's argument the parties were principal and agent, not buyer and seller, seems to be largely based on testimony that defendant did not have on hand on October 12 the 20 heifers plaintiff wanted to buy and it was necessary for defendant to acquire 15 before he could perform his contract. We think defendant claims too much for this testimony, most of which plaintiff denies. If defendant agreed to sell plaintiff the 20 cattle for $6000 the mere fact he did not then have all of them, although he had some, would not make him plaintiff's agent for their purchase.

Agency is a fiduciary relation which results from the manifestation of consent by one person, the principal, that another, the agent, shall act on the former's behalf and subject to his control, and consent by the other so to act. Brown v. Schmitz, 237 Iowa 418, 424, 22 N.W.2d 340, 343, and citations; Restatement Agency, 2d Ed., section 1; 3 Am.Jur.2d, Agency, section 1.

There is little if any evidence of such relation--that plaintiff consented to defendant's acting in the former's behalf and subject to his control or that defendant consented to, or did in fact, so act. We find no substantial evidence, direct or circumstantial, plaintiff exercised any control over defendant in buying the 16 cattle or reserved the right so to do. Defendant purchased the cattle where and from whom he pleased, presumably paid for them, he was the buyer, he took title in his own name and they were consigned to him at Cedar Falls, Iowa. They were not plaintiff's cattle before delivery to him. There is no evidence defendant purported to act as plaintiff's agent in buying them. Brown v. Schmitz, supra; Ward Commission Co. v. Sioux Falls Nat. Bank, 199 Iowa 829, 834, 202 N.W. 829, support our conclusion.

The burden to prove the affirmative defense there was a principal-agent relation was upon defendant. The question, as ordinarily, was essentially one of fact for the trial court in the absence of a jury. Grismore v. Consolidated Products Co., 232 Iowa 328, 334-335, 5 N.W.2d 646, 651, and citation; Fowler v. Berry Seed Co., 248 Iowa 1158, 1165, 84 N.W.2d 412, 416; 3 Am.Jur.2d, Agency, section 348, 359; 3 C.J.S. Agency § 330b(1), pages 323-324.

The main procedent defendant cites for his first assigned error is Foley v. Nimocks, 175 Iowa 464, 157 N.W. 178. We do not regard it as in point or in conflict with our conclusion. Defendant there persuaded plaintiff, a minister, to purchase and hold for the former two shares of stock in a certain corporation at a fixed price which defendant would pay plaintiff within a specified time. Plaintiff then owned none of the stock, had none to sell, was of course not a dealer in stocks and held the two shares as defendant's property. In a law action to recover from defendant the price of the stock there was a judgment for plaintiff, which we affirmed, on the ground he acted as defendant's agent and the agreement (evidenced by a writing)...