Schroeder v. Drees

• Decision Date: 04 June 1957
• Citation: 83 N.W.2d 707,1 Wis.2d 106
• Parties: Herman SCHROEDER, Appellant, v. Henry DREES et al. d/b/a Drees Livestock Co., Respondents.
• Court: Wisconsin Supreme Court

Page 707

83 N.W.2d 707

1 Wis.2d 106

Herman SCHROEDER, Appellant, v. Henry DREES et al. d/b/a Drees Livestock Co., Respondents.

Supreme Court of Wisconsin.

June 4, 1957.

Charlton, Yanisch & Binzak, Milwaukee, William A. Ritchay and Earl A. Charlton, Milwaukee, of counsel, for appellant.

N. B. Langill, Marinett, for respondents.

MARTIN, Chief Justice.

Respondents are operators of a livestock business in Peshtigo, Wisconsin; part of said business consists of operating a sales pavilion for the disposal of farmers' surplus livestock. On Fridays from May to October, inclusive, sales are conducted at the pavilion and livestock is sold for the owners or consignors in the auction ring. The stock sold is not the property of the respondents. A licensed veterinarian, appointed by the state, supervises the sale and passes on the credentials of all the stock offered for sale.

About a week prior to June 1, 1951 one C. E. Reynolds of Southwest City, Missouri, stopped at respondents' place of business and inquired whether hogs could be handled at the weekly sale. He was advised that they would have to be accompanied by a health certificate. On Thursday, May 31, 1951, one H. A. Harkrader delivered at the respondents' pavilion 152 young pigs from Reynolds, presenting the following document:

'Affidavit

'This is to certify that I, Dr. W. B. Lamb, a qualified veterinarian of Grove, Oklahoma, have this 29th day of May, 1951 inspected 152 shoats enroute to Pestaco, Wisconsin.

'I find them clear of any infections disease. I have given these hogs the treatment of hog cholera serum according to law. No Virus used. None of these shoats are running temperature.

'The driver: H. A. Harkrader--enroute to Pestaco, Wisconsin.

'Dr. W. B. Lamb

'State of Oklahoma

County of Delaware} §§

'Subscribed and sworn to before me this 29th day of May, 1951.

Hazel H. Beaman

'Notary Public

'My commission expires 10-4-53'

Harkrader unloaded the pigs and they were placed in the receiving pens, and on the following morning when the state-appointed veterinarian arrived, respondents presented the affidavit to him.

Appellant is an experienced pig buyer, having dealt in two to three thousand pigs prior to June 1, 1951. He arrived at the sales pavilion rather early on the morning of June 1st, inspected the pigs and was satisfied with their condition. He testified that he asked Henry Drees whether the pigs were vaccinated and was informed that they were. Drees denies that he had any conversation with the appellant. Schroeder testified several times that he relied on his own judgment in buying the pigs.

The sale took place in the afternoon of June 1st and appellant purchased 128 of the pigs, paying $1,663.55 for them. Eight were sold to Maurice Hansen of Oneida, Wisconsin and sixteen to William E. Markey of Ironwood, Michigan. These 152 pigs were the only pigs sold at the respondents' place of business during the year 1951.

After the purchase appellant removed eight of the pigs to a farm. The remaining 120 he left in the barn at the pavilion until the following Monday when he intended to take them to Rockford, Illinois for sale to one Claude Erb. Over the weekend appellant was the only person who cared for them. On Saturday or Sunday he noticed one of the pigs was dead.

On Monday he loaded the 119 animals into his truck, transported them to Rockford, delivered them to Erb and was paid $1,963.50 for them. Erb asked Schroeder for a health certificate which is required by the State of Illinois for the transportation of animals into that state; Schroeder said he did not have it but would bring it with him on the next trip.

About ten days later, when Schroeder took another load of pigs to Erb, Erb refused them and advised Schroeder that the pigs he had delivered on June 4th were all dead or dying. Subsequently all the pigs died. The disease was found by the state laboratory to be hog cholera and the State of Illinois, on behalf of Erb, proceeded against Schroeder for the collection of the money Erb had paid for the pigs together with certain costs, totaling $2,300.

Although Schroeder states in his amended complaint that he gave notice to respondents of breach of warranty and demanded return of his money following his discovery that the pigs were diseased, the evidence shows that respondents had no such notice until the commencement of this action on January 5, 1952, which was approximately seven months after Schroeder had been advised by Erb that the hogs were sick and dying.

The trial court found, and the undisputed evidence supports the finding, that appellant failed to give to respondents the notice required by sec. 121.49, Stats., which provides:

'* * * 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.'

Giving of such notice is a condition precedent to liability; failure to do so is fatal to recovery by appellant on his first cause of action. Marsh Wood Products Co. v. Babcock & Wilcox Co., 1932, 207 Wis. 209, 240 N.W. 392; Ace Engineering Co. v. West Bend Malting Co., 1943, 244 Wis. 91, 11 N.W.2d 627; Erickson v. Westfield Milling & Electric Light Co., 1953, 263 Wis. 580, 58 N.W.2d 437.

At the close of the testimony appellant moved to amend the...