Shank v. Lesich

• Decision Date: 09 June 1927
• Citation: 296 S.W. 224
• Parties: SHANK v. LESICH.
• Court: Missouri Court of Appeals

296 S.W. 224

SHANK v. LESICH.

Springfield Court of Appeals. Missouri.

June 9, 1927.

Appeal from Circuit Court, Laclede County; W. E. Barton, Judge.

Action by J. Ed. Shank against J. H. Lesich, instituted in the justice court. On appeal to the circuit court, judgment was rendered for plaintiff, and defendant appeals. Affirmed.

A. W. Curry, of Lebanon, and Spencer Legan, of Conway, for appellant.

L. O. Mayfield, of Lebanon, for respondent.

BRADLEY, J.

This is an action for damages growing out of a sale of hogs alleged to have been sick and diseased at the time of the sale. The cause was filed in a justice of the peace court, and was thereafter appealed to the circuit court, and tried without a jury, and resulted in a judgment in favor of plaintiff for $42.65. Failing on motion for a new trial, defendant appealed.

It is alleged in the complaint filed that the defendant, on or about April 12, 1925, in Laclede county sold plaintiff certain sick and diseased hogs; that said hogs were purchased for slaughter and for food; and that plaintiff did not know at the time of the sale that said hogs were sick and diseased, but that defendant at the time did know that said hogs were sick and diseased.

Defendant contends that the statement and the evidence are too indefinite to support a judgment, and that the judgment is excessive.

The statement is indefinite as to the number of hogs purchased that were sick or diseased, but the grounds for recovery and the damages claimed to have been sustained are definitely stated. The cause originated in a justice of the peace court, where formal and exact pleadings are not required. The statement filed clearly identifies the transaction between plaintiff and defendant, and is sufficient, we think, to advise defendant of the nature of the cause, and to bar any other cause for damages based upon the ground that the hogs sold were sick and diseased. Such being the case, the statement is sufficient. Jarrett v. Mohan, 142 Mo. App. 29, 126 S. W. 212.

It is argued that the evidence is too indefinite to support any judgment. In other words, the contention is that there is no evidence of a substantial nature tending to establish that defendant was guilty of any act or acts in the sale of the hogs which would make him liable in damages to plaintiff. The gravamen of plaintiff's case is that defendant sold him hogs sick at the time with cholera, and that certain of these hogs thereafter died of cholera. Plaintiff alleged that he purchased the hogs for slaughter and for food, and that defendant so knew. Plaintiff's evidence tended to support these allegations. Defendant made no express warranty respecting the sound condition of the hogs, and contends that there is no implied warranty that the hogs were fit for food, and denied that he knew that the hogs had cholera.

In Smith v. Carlos, 215 Mo. App. 488, 247 S. W. 468, in an opinion by Judge Farrington, this court held that, where food is prepared in a restaurant for immediate service, there is an implied warranty of its wholesomeness and fitness for human food. This question is considered at some length in 32 Law Series, 56 (University of Missouri), but the sale here and the question of food raised here are of a different nature and character to that...