Streeter v. Vaughan, 31539

• Decision Date: 23 August 1951
• Docket Number: No. 31539,31539
• Parties: STREETER, v. VAUGHAN et ux.
• Court: Washington Supreme Court

Page 225

39 Wn.2d 225

235 P.2d 193

STREETER, v. VAUGHAN et ux.

No. 31539.

Supreme Court of Washington, Department 1.

Aug. 23, 1951.

Loomis Baldrey, Samuel W. Peach, Bellingham, for appellant.

Abrams, McCush & Rinker, Bellingham, for respondent.

DONWORTH, Justice.

Plaintiff brought suit against William Vaughan and his wife and R. A. Reeve to recover damages sustained by plaintiff in the purchase of a herd of cattle from Vaughan allegedly induced by defendants' false representations that they were free of Bang's disease.

The case was tried before a jury. At the close of plaintiff's evidence, the court sustained the challenge of Vaughan and wife to the sufficiency of the evidence and they were dismissed from the action. A similar challenge on behalf of defendant Reeve was denied and the trial proceeded against him as sole defendant.

After both parties had rested, defendant Reeve renewed his challenge to the sufficiency of the evidence and this was likewise denied by the court. The jury returned a verdict in favor of the plaintiff in the amount of $1,610. Judgment in this amount against defendant Reeve was entered by the court, from which he has appealed.

The case was submitted to the jury on two theories, fraud and negligence. The principal ground upon which appellant relies on this appeal is that there was not sufficient competent evidence to justify the submission of the case to the jury on either theory.

The evidence was not seriously in conflict as to the facts material to our decision. The transactions involved in this controversy took place between Thursday, November 20, 1947, and Wednesday, November 26, 1947. Respondent owned and operated a dairy farm in Skagit county on which he had a herd of nine cows which were free of Bang's disease. He desired to purchase additional cattle and through one Chase, a cattle dealer, he learned that defendant Vaughan had twenty-five cows and a bull for sale. Respondent's testimony regarding the purchase of this herd is as follows: 'A. I went to Mr. Vaughan's farm at Everson with Mr. Chase, a cattle dealer, I think that was on the evening of the 20th of November, 1947, and Mr. Chase said he had the herd of cattle for sale, twenty-five head and a bull, and we saw Mr. Vaughan at the barn and he said they were for sale; that he wanted $5000.00 for the herd, I believe, and I asked him if they were clear of Bangs disease. He said yes, they were, but I told him I wanted a test on them because the State was in my community testing at the time and that is the test I had to take, and I mentioned my veterinarian there, Dr. Clinton, I would bring him up and have him take a test on them, and Mr. Chase spoke up about Dr. Reeve at Everson was closer and he could run a test on them, to I said Okeh, I would pay for the test, because I want a clean herd. I had a clean herd. So we agreed then to have Dr. Reeve test them, and Mr. Chase and I stopped on the way home and he went to the house and talked to Dr. Reeve about it, and then they called me on the porch and I asked him if he would test them for me and I would pay him for it, and he said yes, Saturday, about noon.'

Respondent took delivery of the cattle (except the bull) in three installments--one load on Saturday afternoon and two on Sunday. He gave Vaughan a check for $5,000 in payment for the cattle and paid Chase $150 for hauling them from Vaughan's farm to his own.

Appellant, who is a licensed veterinarian of some thirty-five years experience, took blood samples from the Vaughan cattle on Friday morning for the purpose of testing them for Bank's disease. He sent one-half of each sample to a private laboratory in Bellingham and the other half to the state laboratory in Puyallup. He received the report from the private laboratory Friday evening. This report showed two head 'suspect' and twenty-four head clear. According to respondent, on Saturday morning appellant told Chase over the telephone that the herd was free of Bang's disease.

The testimony of respondent, of Chase and of appellant regarding this alleged false representation is set forth as follows:

Respondent's testimony:

'Q. Now, what was the next you heard from Mr. Vaughan, Dr. Reeve, or Mr. Chase concerning the cattle? A. About Saturday noon, Mr. Chase called and said they were all clear, and said we could start hauling that day, so I went up Saturday afternoon after the first load.

'Q. Where did Mr. Chase tell you he had acquired that information that they were all clear? A. He said Dr. Reeve had called him.

'Q.

Dr. Reeve had called him and advised that they tested all clear? A. Yes.

'Mr. Baldrey: Object to that as being hearsay.

'The Court: Overruled.'

On direct examination, Dr. Reeve testified as follows:

'Q. Did you communicate the result of this quick test to Mr. Streeter or Mr. Chase? A. I did, to Mr. Chase.

'Q. Exactly what did you tell him? A. I told him that the herd was clean of Bangs reactors, but there was two suspects in there, from the reaction of these animals that had been vaccinated, I figured.

'Q. When did you tell him that? A. That was--well, that was the advice--that was on the next Wednesday, when I was down on his place, if I remember right.

'Q. When did you have your first conversation with Mr. Chase, after you received the test from Dr. McKenzie? A. That was on a Wednesday.

'Q. That was on a Wednesday? A. When I was down to the plant, inspecting.

'Q. You had--I don't mean conversation in person. Did you communicate with him in any way before that Wednesday? A. Not to the best of my knowledge, no.

'Q. Did you have a telephone conversation with him? A. Not--only on a Saturday, as he called up.

'Q. Well, that is what I am wanting you to tell about. What was that conversation? A. Well, that was conversation in regard to this herd.

'Q. When was that? A. That was on a Saturday.

'Q. What date? A. Well, Friday, that would be the 22nd. It was on a Saturday. Friday would be the 21st; it would be the 22nd.

'Q. You made the test on the 21st, and on the 22nd, you phoned Mr. Chase? A. No. He called me.

'Q. What was that conversation? A. Well, my conversation was that, as far as I could ascertain through this test, that the animals were free. There was two suspects, due, I figured, from vaccination. The rest were clean, only the two that were suspects, were from vaccination.'

Chase, who was acting as respondent's agent and whose testimony is particularly pertinent because he was the actual source of respondent's information, gave the following testimony:

'Q. Did you have any conversation at any time concerning any suspects? A. Dr. Reeve told me on the phone in regards to these cattle that there was a suspect, or two suspects, I don't recall just what it was, but they was vaccinated cattle and he figured it was due to vaccination that showed suspect.

'Q. When was that? A. I believe it was on Saturday morning, following the purchase of the cattle. I believe it was Saturday morning.

'Q. On Thursday, you made the first visit up there; is that right? A. That's right.

'Q. And on Friday, Dr. Reeve took the test, as far as you know? A. As far as I know. He was to take the test next morning.

'Q. And on Saturday, he notified you as to the result of the test? A. Well, I believe it was Saturday morning, either Friday night or Saturday morning. I believe it was Saturday morning.

'Q. And you got some of the cattle Friday night, did you? A. No sir. We got them Saturday night * * *.

'Q. (By Mr. Baldrey) When did you receive information from Dr. Reeve there was a suspect? A. He told me Saturday morning there was one or so that showed suspect.'

When cross-examined by respondent's counsel, Chase became somewhat confused as appears from the following testimony:

'Q. Now, I just have one or two questions, Mr. Chase: I want to get clear in my mind on what occasions you saw Dr. Reeve in connection with this transaction. My recollection, from your testimony, and you correct me if this is wrong, was on Thursday, you and Mr. Streeter stopped to see him, and that he drew the blood on Friday, and then he called you on Saturday morning and said they were all clear; is that correct? A. Yes.

'Q. And then you testified that, Saturday, after the purchase of the cattle, in talking to him over the phone, he advised you there were some suspects, but he thought they were just vaccinated cattle; is that the correct sequence? A. Well, he said the cattle were clear, but there were two suspects, but, in his opinion, they were due to vaccination because, evidently, they must have been young cattle or identified as having been vaccinated cattle * * *.

'Q. Wasn't that conversation on Saturday a week after you took delivery of the cattle? A. Not as I recall. 'Q. You are certain of that? A. Well, not exactly.

'Q. You are not just certain as to what date that conversation came up with Dr. Reeve, are you? A. Well, as I recall it, he transferred that message to me the Saturday morning when we took them, that the cattle were all clear.'

The testimony of respondent as to what his agent told him is patently incompetent as hearsay and should have been excluded. The competent evidence on the issue does not bear out respondent's contention that appellant told Chase, before the sale, that the cattle were all clear. On the contrary, it shows without contradiction that appellant on Saturday morning before the sale told Chase that the cattle were all clear except for two 'suspects' and that in his opinion the 'suspects' were vaccinated cattle.

Appellant on Saturday also mailed to Chase a statement certifying that the private laboratory had found the Vaughan cattle free of Bang's disease. However, this was not received by Chase until Monday and respondent had meanwhile removed the cattle to his own farm and placed them in contact with his own herd.

On Monday (November 24), Dr. Reeve received the report of the state laboratory test. This was delivered to Chase on...