Tallent v. Fox

• Decision Date: 24 February 1940
• Parties: TALLENT et al. v. FOX.
• Court: Tennessee Court of Appeals

141 S.W.2d 485

24 Tenn.App. 96

TALLENT et al. v. FOX.

Court of Appeals of Tennessee, Middle Section.

February 24, 1940

Certiorari Denied by Supreme Court June 8, 1940.

Error to Circuit Court, Marshall County; T. L. Coleman, Judge.

Action by W. C. Fox against Will Tallent and another, for damages based on delivery of diseased hogs which had been represented to be sound. Judgment for plaintiff, and defendants bring error.

Affirmed.

Bennett Eslick, of Pulaski, A. V. McLane, of Nashville, and Braly Craig, of Lewisburg, for plaintiffs in error.

Thurman Thompson, of Lewisburg, and David Rhea, of Pulaski, for defendant in error.

FAW Presiding Judge.

This case is before this Court pursuant to a writ of error to the Circuit Court of Marshall County sued out by Will Tallent and Horace Sherrell, the defendants below, and to whom, for convenience, we will refer as defendants in this opinion. We will likewise refer to W. C. Fox, the sole plaintiff below and the defendant in error here, as the plaintiff.

Plaintiff Fox is a resident of Marshall County, defendant Tallent is a resident of Giles County, and defendant Sherrell is a resident of Lincoln County; but they live within a few miles of each other.

The action was begun on March 19, 1936, in the court of a Justice of the Peace for Marshall County, by the service of a warrant on defendant Tallent in Marshall County and the service of a counterpart warrant to Lincoln County upon defendant Sherrell.

The plaintiff's cause of action stated in the warrants, as originally issued by the Justice of the Peace, was "a plea due by damages by reason of delivering 65 hogs on March 13, 1936, diseased with cholera on plaintiff's farm representing said hogs to be sound".

The Justice of the Peace rendered judgment in favor of the plaintiff and against the defendants for $450 and costs of suit; whereupon the defendants appealed to the Circuit Court of Marshall County, where the case was tried to a jury, and the jury returned a verdict for the plaintiff and assessed his damages at $400, and judgment of the Court was entered accordingly. After their motions for a new trial and in arrest of judgment had been overruled, the defendants appealed in error to a former term of this Court, where (by an opinion filed and judgment entered on September 10, 1938) this Court held and adjudged that there was evidence to sustain the verdict of the jury, but that (under the pleadings on which the case had been tried below) there was reversible error in the admission of incompetent evidence and in the charge of the Court to the jury, and the judgment was reversed, the verdict was set aside, and the cause was remanded to the Circuit Court of Marshall County for a trial de novo.

In the Circuit Court, after the remand, the plaintiff, by leave of the Court (but over the objection of the defendants), amended the original warrant by certain interlineations in the statement of the plaintiff's cause of action therein, and also by the addition thereto of a "Second Count" and a "Third Count".

Designating the original warrant, as amended, as the First Count, the averments of plaintiff's cause of action in the warrant on which the trial now under review was had, are as follows:

First Count.

"To answer the complaint of W. C. Fox in a plea due by damages by reason of delivering 65 hogs on March 13, 1936, diseased with cholera on plaintiff's farm, which they had sold to plaintiff, representing said hogs to be sound and healthy for a sum under $500.00."

Second Count.

"And for this; to answer the complaint of W. C. Fox, in an action for damages in the sum of $499.99 for contracting to deliver to plaintiff, on the date of March 13, 1936, thirty or thirty-five head of hogs which had been seen by Mack Wheeler in pen No. 1, at the stockyards in Pulaski, Tennessee, together with other hogs which were just as good, if not better, in sufficient numbers to make a total of sixty-five hogs, and instead, they substituted and delivered to plaintiff other hogs which were infected with cholera, in the place and stead of the hogs they had contracted to deliver."

Third Count.

"And for this; to answer the complaint of W. C. Fox, in an action for damages, for a deceit, in the sum of $499.99 for fraudulently deceiving the plaintiff, on or about the date of March 13, 1936, in that the defendants sold to him sixty-five hogs representing them to be the same thirty or thirty-five hogs Mack Wheeler had seen in pen No. 1, at the stockyards in Pulaski, Tennessee, together with a sufficient number of other hogs, that was just as good, if not better, added to said group, to make the total number of sixty-five hogs, and plaintiff acted upon said representation and bought the said sixty-five hogs, when in fact the hogs delivered to plaintiff, on said date, were other and entirely different hogs, that were infected with cholera and otherwise inferior to the hogs that had been represented to plaintiff, to be."

The Trial Judge construed the First Count as alleging "a breach of warranty"; the Second Count as alleging "a breach of contract", and the Third Count as charging "fraud and deceit"; and, as a brief method of distinguishing the three counts, they have been thus characterized throughout the record and briefs.

Each of the defendants pleaded the general issue--not guilty--and defendant Sherrell also filed a special plea, verified by his oath, in which he averred "that he was not a partner in the transaction of the sale of the hogs to W. C. Fox by Will Tallent and did not know anything about the trade, or any of the transaction, and had no connection with it in any way."

Upon the issues thus made, the case was tried to a jury, and the jury found in favor of the plaintiff and fixed his damages at $499.99; whereupon judgment of the Court was entered accordingly against the two defendants, and in favor of the plaintiff, for $499.99 and the costs of the cause.

A joint motion for a new trial on behalf of the two defendants was overruled, and thereafter a motion in arrest of judgment on behalf of defendants was likewise overruled; whereupon the defendants prayed an appeal to this Court, which was granted by the Trial Court, and a transcript of the record was thereafter filed in this Court, but, it appearing that the two defendants had filed, as and for an appeal bond, a written obligation signed by said defendants alone, without sureties, which in the opinion of the Court was not an appeal bond in contemplation of law, and did not perfect their appeal, the appeal was dismissed and the cause was stricken from the docket of this Court. However, defendants Tallent and Sherrell were granted leave to withdraw the transcript then on file in this Court, it being represented by them, through their attorneys of record, that they desired to file the record for writ of error, and the record was thereafter duly filed, and bond given, for writ of error, and the case has been submitted to this Court upon the transcript of the record, assignments of error on behalf of the defendants Tallent and Sherrell, and briefs for the parties, respectively.

There are twenty-six of the naked assignments of error, covering approximately thirty-four typewritten pages. Obviously it would extend this written opinion beyond any reasonable length, and would serve no useful purpose, to set out all of said assignments of error verbatim herein. We will dispose of the questions presented by the assignments of error in the order which seems to us most appropriate, without following the order of their assignment.

Defendants' third assignment of error is that the Court erred in permitting the plaintiff to amend the warrant after the case was called for hearing, the said amendment stating three grounds of liability which constituted "breach of warranty, breach of contract, and fraud and deceit".

The assumption in the third assignment, supra, that the warrant was amended "after the case was called for hearing" is not supported by the record. It appears from the minutes of the Trial Court that, on application of the plaintiff and after argument of counsel for both plaintiff and defendants, the warrant was amended, by leave of the Court, in the manner hereinbefore stated, on November 25, 1938, and the case was called for trial, and the trial was begun on December 1, 1938. It is thus seen that counsel for defendants had six days notice of the allowance of the amendments before "the case was called for hearing".

We find no error in the action of the Trial Court in allowing the aforesaid amendments to the warrant. Our statutes of jeofails are extremely liberal, and, upon application seasonably made (as in this case), a declaration may be amended by the insertion therein of any matter which would have been permissible if it had been contained in the declaration when originally filed.

It is provided by the Code, section 8565 (Shan. Code, sec. 4439; Code of 1858, sec. 2748); that: "Whenever the facts of the case entitle the plaintiff to sue for breach of contract, or, at his election, for the wrong and injury, he may join statements of his cause of action in both forms, or either."

Whatever may have been the rule at common law, it was permissible, by virtue of the above quoted statute, for the plaintiff to join, in separate counts of the same declaration (or warrant), actions upon the facts of the case for (1) breach of warranty, (2) breach of contract, and (3) fraud and deceit. The several counts are not repugnant or antagonistic to each other. Bible v. Palmer, 95 Tenn. 393, 394, 32 S.W. 249; Louisville & N. Railroad v. Guthrie, 10 Lea 432, 433. Independent of statute, it was so held in Shippen v. Bowen, 122 U.S. 575, 7 S.Ct. 1283, 30 L.Ed. 1172.

In the...