Schaefer v. Weber

• Decision Date: 03 November 1953
• Citation: 60 N.W.2d 696,265 Wis. 160
• Parties: SCHAEFER, v. WEBER.
• Court: Wisconsin Supreme Court

Page 696

60 N.W.2d 696

265 Wis. 160

SCHAEFER, v. WEBER.

Supreme Court of Wisconsin.

Nov. 3, 1953.

Action by the plaintiff Myrtle Schaefer to recover damages sustained by her as a result of sale to her of cattle by the defendant Walter Weber.

The first paragraph of the complaint alleged that the plaintiff was a widow, and a farmer by occupation, and that the defendant was the operator of a tavern and a dealer in livestock, and set forth the places of residence of the parties. The second and third paragraphs stated as follows:

'2. That on or about the 14th day of October, 1949, the plaintiff purchased 12 head of cattle, all heifers, for the agreed price of Two Thousand Dollars ($2000.00) cash, which plaintiff paid to the defendant. That at and prior to the said sale, the defendant represented to the plaintiff that the said 12 head of cattle were free from disease and in particular were free and clean of any tuberculosis and/or brucellosis, commonly known as bang's disease; that the defendant at and prior to the said sale represented to plaintiff that the said 12 head of cattle, all heifers, so sold by defendant to plaintiff, had been recently tested for bang's disease, also known as brucellosis, and for tuberculosis, and that they had all passed their test and were free and clear of such disease; that at said time defendant further represented to plaintiff that he would deliver to her certificates of health as provided for by the laws of this state, showing said 12 head of cattle to be free of tuberculosis and bang's disease. That, relying upon such representations, the plaintiff consummated the deal and paid defendant the sum of Two Thousand Dollars ($2000.00) for the 12 head of heifers and accepted delivery thereof.

'3. That in truth and in fact the said 12 head of heifers had not been tested for bang's disease and tuberculosis and defendant has never delivered to plaintiff certificates of health covering the said 12 head of cattle, or any part thereof, and in the summer of 1950, the plaintiff had the said cattle tested preparatory to selling same and found that a majority of them were infected with bang's disease and one was infected with tuberculosis, as a result of which plaintiff was obliged to sell the 7 head as beef cattle on the market and the other 5 head were retained as suspects which were later sold at a reduced price by plaintiff.'

The fourth paragraph alleged the items of plaintiff's damages aggregating $2,000; and the prayer of the complaint prayed for judgment in said sum, together with costs and disbursements.

The defendant's answer, among other things, denied the making of any false representation; alleged that the cattle were kept by plaintiff on her farm from on or about the 14th day of October, 1949, to sometime in August, 1950, and during such time were exposed in many ways to opportunities to acquire Bang's disease; and further alleged that any loss the plaintiff suffered in the sale of said cattle was due to no warranties or agreements made by the defendant.

The case was tried to the court and a jury, and after the conclusion of the taking of testimony the defendant moved for a directed verdict, which motion was denied. The case was submitted to the jury upon a general verdict, and as returned by the jury the verdict read as follows:

'We, the jury, duly empaneled and sworn to try the above-entitled action, find for the plaintiff, Myrtle Schaefer, and assess her damages at $2,000.00.'

Judgment was entered upon such verdict in behalf of the plaintiff and against the defendant for the damages found by the jury, together with plaintiff's costs and disbursements. From such judgment the defendant has appealed. Further facts will be stated in the opinion.

Harry U. Amidon, Hartford, for appellant.

George A. Hartman, Robert G. Hartman, and Leo C. Hartman, Juneau, for respondent.

CURRIE, Justice.

Counsel for the defendant contends that it was error for the trial court to have denied defendant's motion for a directed verdict. The basis of such contention is that the evidence establishes as a matter of law that plaintiff did not give a proper notice to defendant of the breach of warranty within a reasonable time as required by sec. 121.49, Stats., which provides in part as follows:

'* * * But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.'

The complaint erroneously states that the cattle sold by defendant to plaintiff on October 14, 1949, were all heifers. Eleven of the twelve were heifers and the other animal was a small bull, but plaintiff's cause of action relates only to the heifers. The plaintiff testified that before the purchase the defendant represented that the cattle had been tested for Bang's disease and 'were clear'. Sec. 95.49(1), Stats.1949, provided that it should be unlawful to sell any cattle unless 'accompanied by a report of complete negative Bang's test conducted within 30 days.'

The jury, in reaching their general verdict, had the right to find that a person in the position of plaintiff would have interpreted the defendant's representation to be that the cattle had undergone a Bang's disease test within 30 days prior to sale and had reacted negatively thereto.

Most of the heifers had been bred before sale, and one had aborted a few days prior thereto. The plaintiff discovered that something was wrong with such heifer and immediately called in a veterinarian who advised her that it had recently aborted. Plaintiff then notified the defendant who came and inspected said heifer. Most of the other heifers aborted in the fall of 1949, and the plaintiff informed the defendant of such fact and he again came to plaintiff's farm and inspected several of the heifers.

The defendant did not furnish the Bang's disease test cards at the time of delivery of the cattle and the plaintiff sent her daughters and hired man to request them on several occasions, but the defendant always had some excuse why he could not deliver such test cards. Finally, after such repeated demands, and some four or five months after the delivery of the cattle, the defendant delivered to the plaintiff approximately 200 test cards and told plaintiff that she could pick out the ones covering the heifers purchased from him. By comparing the numbers on the ear tags of the heifers purchased with those on the cards, plaintiff was able to find 4 or 5 cards covering tests of the heifers purchased, but all of these tests were made some ninety days before plaintiff had purchased the heifers from defendant. The plaintiff retained these 4 or 5 cards and returned the other cards to the defendant.

In August, 1950, plaintiff desired to have an auction sale of her cattle and called in an auctioneer who informed her that before doing so she would have to have them tested for Bang's disease. She then had such test made the latter part of August, and six of the heifers reacted positively, thus disclosing that they did have Bang's disease. These were sold on September 1, 1950, to the Cudahy Brothers Company, which was within one week after the tests had been made.

Plaintiff then consulted Attorney George A. Hartman, of Juneau, who, on September 5, 1950, wrote the defendant a letter notifying him that plaintiff was claiming damages because of defendant having sold her heifers...