Rudd v. Rogerson

• Decision Date: 21 May 1956
• Docket Number: No. 17650,17650
• Citation: 297 P.2d 533,133 Colo. 506
• Parties: Lloyd K. RUDD, Plaintiff in Error, v. Robert B. ROGERSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 533

297 P.2d 533

133 Colo. 506

Lloyd K. RUDD, Plaintiff in Error, v. Robert B. ROGERSON, Defendant in Error.

No. 17650.

Supreme Court of Colorado, En Banc.

May 21, 1956.

William E. Doyle, Denver, for plaintiff in error.

Albert P. Fischer, Fort Collins, Forrest S. Blunk, Denver, for defendant in error.

MOORE, Justice.

Plaintiff in error, plaintiff in the trial court and hereinafter called plaintiff or Rudd, seeks review by writ of error of the judgment entered by the district court dismissing his complaint for insufficiency of evidence to support the same. He also seeks review of the judgment entered by the trial court in favor of defendant Rogerson on Rogerson's counterclaim. Rudd's action is for rescission of a contract between him and defendant Rogerson by the terms of which plaintiff purchased from defendant a herd of cattle which was represented to be, and sold as, registered Aberdeen Angus.

August 17, 1953, a written contract was entered into between Rudd and Rogerson which provided for the sale by Rogerson to Rudd of eighty-five registered Aberdeen Angus cows with calves and four registered bulls for the total sum of $26,700. Exhibit P is the bill of sale executed by Rogerson August 27, 1953, and it purports to sell eighty-two registered cows, three unregistered cows, and four registered bulls. This exhibit specifically identifies the registered cows by name and registration number, and lists the heifer and bull calves as registrable, giving their tattoo numbers. The cattle were delivered to plaintiff October 9, 1953.

In substance the complaint alleges that defendant Rogerson, with knowledge of Rudd's interest in purchasing Aberdeen Angus cattle for breeding purposes, represented to him that he was in the business of raising and selling registered Aberdeen Angus cattle and that his cattle either were registered, or eligible for registration, and were of good quality; that in reliance on said representations plaintiff executed an agreement with defendant on August 17, 1953, to purchase eighty-five registered cows with calves and four registered bulls for the sum of $26,700; that thereafter, by bill of sale executed August 27, 1953, defendant itemized certain allegedly registered Aberdeen Angus cattle and certain claves warranted as eligible for registration as the offspring of the cows listed. October 9, 1953, certain cattle were delivered to plaintiff in conformance with the contract, and at that time plaintiff paid delivery charges in the amount of $583.40. Upon inspection of the cattle, plaintiff rejected them for breach of express and implied warranties on the grounds that:

a. Certain of the animals so delivered were not the animals itemized in the bill of sale;

b. Certain of the animals warranted as registered or eligible for registry were not, in fact, eligible for registration under the rules of the American Aberdeen Angus Breeder's Association.

An itemized list of the many breaches of warranties are described in Exhibit C attached to the amended complaint.

It further is alleged, that by reason of the violation of the warranties and representations, plaintiff was unable to breed or market the cattle as registered cattle and because of this he rescinded the contract on November 19, 1953, by sending a notice to defendant, and that, during the period that he had possession of the cattle, he spent the sum of $6,997 for the reasonable and proper care of said animals. Plaintiff prayed for rescission of the contract; for the recovery of the $5,000 paid to defendant; for the cancellation of the notes for the balance of the purchase price; for the recovery of $583.40 delivery costs; and for the sum of $6,997 expended by him in the care of the cattle.

In his answer defendant admits that he sold the cattle to plaintiff on the date and for the price alleged, but denies that he represented the cattle to be either registered or eligible for registration. He further alleges that in the list attached to the bill of sale there were certain typographical errors and the bill of sale was, by mutual mistake, drawn so that it purported to sell eighty-five registered cows; that both parties knew that only eighty-two cows were registered; that plaintiff purchased the herd in an 'as is' condition; that plaintiff had an opportunity to inspect the herd and that he accepted the cattle; and that plaintiff did not rely upon any representation made by defendant, but upon his own judgment and the judgment of his agent.

In his counterclaim defendant alleges that in connection with the sale of the cattle certain notes were executed by plaintiff; that plaintiff neglected to feed the cattle properly; that he defaulted in other respects as a result of which it became necessary for defendant to foreclose the mortgage and that he actually did foreclose and took possession of the cattle; that he thereafter sold the cattle for a total sale price of $18,740; that defendant made every effort to correct the typographical errors which appeared in the bill of sale and in the herd or registry books; that all the cattle which were repossessed and which had not been registered were, as of the time of the filing of the answer, registered with the Aberdeen Angus Association; that he incurred certain expenses and that there was a deficiency following the foreclosure and as a result thereof he was entitled to judgment for the deficiency, for expenses, and also for attorney's fees.

In his reply plaintiff alleged that the cattle sold were specifically described and the registry numbers were set forth; furthermore, that the calves were warranted as eligible for registration and also were warranted as the offspring of the specifically described cows, and that thirty-five other calves were warranted as the offspring of the cows.

Evidence offered by plaintiff tended to establish that some registration numbers of cattle listed on the bill of sale properly belonged to cows which defendant Rogerson did not own; that some cows listed and identified on the bill of sale by register number were not among those delivered; that some which were not listed on the bill of sale were delivered; that the Aberdeen Angus Association determined after the delivery of the herd that eighteen of the calves were ineligible for registration; and that plaintiff had endeavored in different ways to determine the pedigree and parentage of the animals involved and to reconcile the discrepancies between the animals called for by the bill of sale and those actually delivered, without success; all of which led to the writing of the letter by plaintiff on November 19, 1953, in which he elected to rescind the contract and informed defendant that the cattle delivered were being held by him subject to Rogerson's order.

Early in August, 1953, the father of plaintiff went to Rogerson's ranch in Jackson county to look at the cattle being offered for sale. The animals were grazing in various pastures on the ranch and the only inspection made was from horseback. At that time plaintiff's father, who was the manager of plaintiff's ranch, advised Rogerson that plaintiff was interested in purchasing registered cattle, and Rogerson informed him that eighty-two cows and calves in the herd either were registered or eligible for registration.

August 17, 1953, Rogerson went to plaintiff's ranch and entered into the original written contract. At that time $1,000 was paid on the purchase price of the cattle and plaintiff agreed to pay an additional $4,000 when he was furnished a list of the registered cattle, the balance of the purchase price was to be made in three instalments to be evidenced by notes secured by chattel mortgage. August 27, 1953 plaintiff and his father went to Rogerson's ranch. When they arrived the cattle were not in corrals as they had expected them to be but were in the various pastures. In...