Stonam v. Waldo

• Decision Date: 31 January 1853
• Citation: 17 Mo. 489
• Parties: STONAM, Respondent, v. WALDO et al., Appellants.
• Court: Missouri Supreme Court

17 Mo. 489

STONAM, Respondent,

v.WALDO et al., Appellants.

Supreme Court of Missouri.

January Term, 1853.

1. By the contract sued upon, the plaintiff bound himself to winter a certain number of cattle for the defendant, and the defendant obligated himself to pay a stipulated sum for every head delivered in the spring “in good, thrifty order and condition.” Held, the plaintiff could not recover for the keeping of any cattle that died, or were not delivered in good, thrifty order and condition, although their death or ill-condition might not have been caused by any want of care on his part.

2. Where the question was, whether cattle had died from disease or from plaintiff's want of care, it was held, that a witness, who had taken cattle to winter from the same drove, might be permitted to state the condition through the winter of the cattle kept by him, what number of them died, in what manner he fed and took care of them, and how many had been affected with disease.

3. A witness will not be permitted to state the symptoms and appearance of cattle that die from want of feed, unless he is an expert in such matters.

Appeal from Jackson Circuit Court.

Wood and Hicks, for appellants.

Napton, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was a civil action, commenced by the plaintiff in the Circuit Court of Jackson county, against defendants, for wintering, feeding and taking care of cattle, under the following agreement: “Memorandum of an agreement entered into on second day of November, 1849, between David Waldo & Co., of Jackson county, Mo., and Samuel Stonam, of Clinton county, Mo. The said Samuel Stonam obligates himself to take of the said David Waldo & Co., two hundred and thirty-seven head of work steers or oxen, to be well wintered on corn and fodder, and delivered at such point in Jackson county as the said Waldo & Co. may designate, in the spring, at such time as they can do well on the prairie range; and the said Waldo & Co. obligate themselves to pay five and 50-100 dollars per head for every one delivered in good, thrifty order and condition; the said Samuel Stonam being liable for all steers that die from neglect or want of due attention, and for damages done by them, or such as escape; but not liable for any that die from accident or unavoidable causes. It is understood between the parties that said cattle are to be kept in such manner as to be in salable condition, suitable for a trip to Santa Fé, early in the spring, by the first day of April next, subject, at all times, to the direction of said David Waldo & Co., or their agents; and if the cattle do not thrive for want of feed, it must be increased sufficiently, or the contract will be forfeited on the part of said Samuel Stonman. It is understood that the cattle are to be well attended to, in every respect; to be salted regularly and sufficiently, and provided with plenty of good water. 237 head. Signed,

SAMUEL his mark. STONAM.”

Plaintiff, in his petition, states that the true number of oxen received by him of defendants under the contract, was 232 head, and of this number 112 died whilst in the plaintiff's possession, of disease, and without any fault of plaintiff; and states also, that plaintiff took all proper care of the oxen delivered to him, according to his contract, and on demand, returned to the defendants the oxen remaining alive, 120 head, and asks for judgment for reasonable compensation for his services, and for medicine, corn, fodder and salt, given and fed to the 112 steers that died, valued at $616, and asks also for judgment for $5.50 per head for the 120 oxen returned to defendants.

Defendants, in their answer, admit the contract, and say plaintiff received of defendants the whole number of oxen mentioned in the contract, to-wit, 237 head, and deny that plaintiff wintered and took care of the oxen as required by his contract; but on the contrary, that plaintiff fed, salted, wintered, watered and attended to said oxen so negligently and carelessly, that 126 head died and were wholly lost to defendants, and by which defendants sustained damage, and for which they ask judgment against plaintiff; they also deny that the oxen, or any of them, were diseased. Defendants admit the return of 120 oxen, and deny that any of them were kept and attended to, as required by the contract, or that they were returned in the condition required by the contract; but on the contrary, after the first of April, and when they were still poor and not thriving, and wholly unfit for use by reason of plaintiff's negligence, defendants, to keep and save them all from dying, were compelled to take the remaining 120 head from plaintiff and place them in the care of others; and defendants deny plaintiff's right to any compensation.

On the trial, it was proved that plaintiff, Stonam, under the contract, received from defendants 232 head of cattle. It was also proved, that of this number, and whilst in plaintiff's possession, 112 died. It was also proved, that the remaining 120 head in the month of May, on demand, were delivered to defendants. Plaintiff then gave evidence conducing to show that he fed and took care of the cattle as required by the contract; and also gave evidence conducing to show that those that died, died of disease; and also evidence conducing to show, that the 120 head returned to defendants, were in thrifty order and condition, salable, and suitable for a trip to Santa Fé. The defendants then gave evidence conducing to show, that plaintiff did not feed and take care of the cattle delivered to him, as required by the contract; but on the contrary, neglected them; and also conducing to show that the cattle that died, did not die from disease or accident, but died by reason of plaintiff's negligence and carelessness. Defendants also gave evidence conducing to show that the 120 head returned to them by plaintiff, were all of them poor and unthrifty, and that none of them were in thrifty order and condition, and none of them in salable condition, or suitable for a trip to Santa Fé, at the time specified in the contract, or at any other time whilst in plaintiff's possession.

The following points were raised on the evidence. It was proved that the cattle received by the plaintiff from defendants, were taken from a large lot of oxen of defendants, which had the same fall crossed the plains from Santa Fé, and that Greer, the witness, had, at the same time with the plaintiff, received out of the same lot 230 head to be wintered for defendants, and that Leggett, a witness, at the same time, bought of defendants, from said lot of cattle, twenty head.

On the examination of said witnesses, defendants propounded to each the following question: “What was the condition of the cattle through the winter, which the witness had kept, and what number of them died, and in what manner the witness had fed and taken care of them, and how many, if any, had been affected with disease?” This question was objected to by plaintiff. The court permitted the witness to tell the condition of the cattle when he received them, and what number died, and of what cause, and how many, if any, were diseased; but refused to let the witness tell in what manner he had fed and taken care of the cattle received by him, witness. Defendants excepted. Defendants also asked Clarkson, a witness, the following question: “What are the symptoms and what appearance do cattle exhibit that die from want of feed?” Plaintiff objected, and the court sustained the objection, and defendants excepted; and here the evidence was concluded.

Plaintiff asked the court to give the jury the following instructions:

1. That if they believe from the evidence, that plaintiff properly and regularly fed, watered and salted the oxen received by him under the contract, and that the defendants, by their agents, received or took a portion of such oxen out of his possession about the first of May, (either with or without his consent,) before the time said...