Swift & Co. v. Redhead

• Decision Date: 01 July 1909
• Parties: SWIFT & CO. v. REDHEAD.
• Court: Iowa Supreme Court

147 Iowa 94

122 N.W. 140

SWIFT & CO.

v.REDHEAD.

Supreme Court of Iowa.

July 1, 1909.

Appeal from District Court, Polk County; Jesse A. Miller, Judge.

On December 24, 1903, the defendant purchased of plaintiff, through its agent, Hugh Van Pelt, about eight tons of blood meal at the agreed price of $383.52. The action was brought for this sum. For answer the defendant alleged: That the consideration had wholly failed, in that the so-called merchandise was a prepared form of the blood of domestic animals, represented by the plaintiff to be exceedingly valuable as a food for cattle, causing them to be and remain healthy and to rapidly take on fat and mature for market; that the same was a new product recently placed upon the market, the qualities of which were unknown to the defendant, and the plaintiff knew at the time that he ordered the same that he was wholly unfamiliar therewith, “and it was distinctly understood and agreed that he was not buying the same upon his own knowledge, but upon the knowledge, representations, and warranties of the plaintiff that the same was suitable, valuable, and profitable for the use aforesaid; that the defendant attempted to make such use thereof, carefully following the directions and instructions of the plaintiff in that behalf, but found, after giving the same a fair test, that the same was not only wholly worthless for such purpose, but was a positive injury and damage to his cattle. Whereupon he notified plaintiff of such facts and notified it that the remainder of said blood meal was in his custody subject to the order of the plaintiff and its officers, and so remained.” By way of counterclaim, it was averred: That plaintiff represented and warranted that said meal was scientifically prepared stock food, valuable and healthful, and would cause feeding cattle to become healthful and remain healthful and thrifty and accumulate fat much more rapidly than had been possible as the result of methods of feeding and treatment that generally prevailed up to the time of the invention and manufacture of such blood meal; that the defendant purchased said meal in reliance upon said representations and warranties for the purpose of feeding a herd of some 121 head of cattle then being prepared for the market; that plaintiff knew that such was the object of the purpose, and sold the same on said representations and warranties with knowledge that defendant was without information and relying thereon; that defendant in feeding said meal followed instructions, but it caused said cattle to sicken, suffer from scours, with the result that it retarded the acquisition of fat; that defendant then rescinded the contract of purchase; that the cattle were worth $4,830 less upon discontinuing the feeding of the meal than they would have been had it not been fed at all; and judgment was prayed for $1,615. In reply plaintiff interposed a general denial and averred that both parties acted with knowledge of the use and results of said meal, and there was no warranty as alleged. The trial resulted in a verdict and judgment as prayed in the counterclaim. The plaintiff appeals. Affirmed on condition.B. F. Taft and Sullivan & Sullivan, for appellant.

Crom Bowen and O. M. Brockett, for appellee.

LADD, J.

The defendant began feeding 140 three year old steers about December 1, 1903. They were grade short horns, polled Angus and Herefords, taken from the pasture in good condition. He began feeding them blood meal in the latter part of the month, up to which time the evidence tended to show they were thrifty and doing well. Thereafter, though well cared for, they scoured badly, and this continued as long as the meal was fed, which was about until the first of March, and thereupon the scouring ceased. According to the evidence, the cattle did not increase in weight to exceed 75 to 100 pounds each during the 60 days they were given the blood meal; whereas, without such food, like cattle ordinarily increase on full feed from 120 to 150 pounds a head in that time. It was also made to appear that, as such cattle fattened, they increase in value per pound. On this showing, in connection with other evidence, which will be referred to farther on, defendant asserted: (1) That the blood meal had proven to be utterly valueless, and therefore the consideration wholly failed; and (2) that he was entitled to recover the damages caused by feeding the same, measured as difference in the market value of the cattle at the end of 60 days' feeding thereof and such value of the cattle had such food not been given them. The jury might have found: That at that time “blood meal” was a comparatively recent preparation; that, though defendant knew of it in a general way, he had never used it and bought it to feed the “bunch” of cattle he then had on the recommendation of the plaintiff's agent; that the agent in selling it so knew and represented that it was a valuable food for cattle and would cause them to continue healthy and rapidly take on fat. As the sale was made for a specific purpose, on the assurance of the seller that the commodity with which the purchaser was unfamiliar, as was well known to the seller, was suitable for the purpose for which sold, and the purchaser in buying relied thereon, it goes without saying that, unless the article was of some value for such use there was a failure of consideration. From the evidence adduced, the jury might have found not only that the “batch” of “blood meal” shipped to defendant was not suitable for cattle food, but that it was injurious to them, and therefore worthless for the purpose sold. This being so, the consideration as to that fed failed, and no recovery can be had for that on hand, as the jury also must have found that defendant advised plaintiff that the portion not fed was retained subject to its order. The second instruction was to this effect, and we do not understand counsel in their brief to challenge its correctness. If anything said under the heading “points in error” can be so construed, the point was not argued nor authorities cited thereon.

2. The counterclaim for damages was based on allegations of an express warranty, and the sufficiency of the evidence to sustain the verdict finding there was such a warranty is challenged. No particular form of words is necessarily to be employed in order to constitute a warranty. All essential is that such was the understanding of the parties. Here the evidence of defendant was that the agent recommended the blood meal very highly, and said that it was very fine food for cattle, that many were using it, that it was valuable in preventing scours in calves, that it was a great deal better than cotton seed meal or oil meal and would produce flesh much quicker, that he had used it himself in feeding, that it would cause cattle to take on fat much more rapidly and keep them in good condition, that he figured out “how much quicker they would be ready for market and how much more they would gain.” The agent denied having stated what effect the meal would have on cattle, or having compared it with cotton seed or linseed oil; but he admitted that he knew defendant was contemplating the purchase of cotton seed meal, that he pointed out the excess of protein in blood meal over cotton seed meal and induced him to purchase the blood meal, that he said blood meal was a preventive and cure for scours, and that he had practical knowledge on the subject. Quoting from his testimony: “I showed him where the Iowa Experiment Station had fed different bunches of steers with corn alone and with different commercial food, and in showing him this I showed him that blood meal produced more profit than any other food fed in conjunction with grain, and further showed him Swift & Co. guaranteed 87 per cent. of protein, which was a great deal larger per cent. than any other food stuff had, and that protein was evidently what he was wishing to buy when he bought cotton seed meal which contained 37 per cent., and blood meal contained 87 per cent. and the difference on the total amount of protein contained in a ton of blood meal and a ton of cotton seed meal made blood meal the cheaper source of protein at the price at which I was selling it to him to be used in connection with their food to produce and maintain a healthful condition and facilitate the taking on of fat and to balance up the rations. Q. Did you tell him that the manufacturers represented this food contained this protein in this proportion and in such condition as that it could be used in connection with the other food as to get the proper balance or proportion of food ingredients and facilitate the maturity of the cattle for the market? A. When fed with corn. Q. Did you represent to him as your claim and the claim of the manufacturers that it was profitable to use this food in connection with the corn and other cattle foods, because so used it...