Steddings v. Dobbins

• Decision Date: 21 December 1914
• Citation: 171 S.W. 979,185 Mo.App. 43
• Parties: H. R. STEDDINGS, Respondent, v. R. L. DOBBINS, Appellant
• Court: Kansas Court of Appeals

171 S.W. 979

185 Mo.App. 43

H. R. STEDDINGS, Respondent, v. R. L. DOBBINS, Appellant

Court of Appeals of Missouri, Kansas City

December 21, 1914

Appeal from Saline Circuit Court.--Hon. Samuel L. Davis, Judge.

Judgment affirmed.

C. P Storts and Reynolds & James for appellant.

S. B Burks, Duggins & Duggins for respondent.

OPINION

ELLISON, P. J.

--Plaintiff sold and delivered to defendant a lot of stock hogs, after defendant had inspected them, for the sum of $ 364.85, of which price the defendant at the time paid $ 47.50 by transferring and delivering to plaintiff a certain bull and gave his check for the balance of $ 317.35, and then notified the bank not to pay it. This action was then instituted for such balance and judgment was rendered therefor in the trial court.

It was alleged in the answer that defendant desired the hogs to run in his feed lot and so informed plaintiff, when the latter expressly warranted them to be "straight and alright and suitable for that purpose." A breach of such warranty was then pleaded; the specification being that the hogs, when purchased, were infected with the cholera from the effect of which disease they began to die the next day after defendant took them to his farm.

Defendant having inspected the hogs, he alleges he took plaintiff's express warranty that they were sound, that is, straight and all right. Plaintiff denied the warranty and that issue was directly submitted to the jury by appropriate instructions, one given at plaintiff's and the other at defendant's request. We therefore accept as an established fact, that no warranty was made.

The only question left in the case relates to the propriety of the court's rulings in admitting and rejecting evidence offered by the respective parties. The record before us does not show a reply denying the new matter of warranty, disease and death of the hogs, but the parties treated the cause at the trial as though the issues were made up and we will do likewise. Though plaintiff may have made the warranty, he was not liable unless the cause of the death of the hogs was within the warranty and the right therefore existed in either party to investigate the further issue whether they, in fact died from disease. To show they did not, plaintiff introduced evidence that defendant saturated them with coal oil in hauling them home, the day being exceedingly cold, and that this was sometimes fatal to hogs. He...