Teter v. Shultz

• Decision Date: 04 March 1942
• Docket Number: 16789.
• Citation: 39 N.E.2d 802,110 Ind.App. 541
• Parties: TETER v. SHULTZ et al.
• Court: Indiana Appellate Court

39 N.E.2d 802

110 Ind.App. 541

TETER v. SHULTZ et al.

No. 16789.

Appellate Court of Indiana, in Banc.

March 4, 1942

Donald R. Mote, of North Manchester, for appellant.

Russell J. Wildman, and Oscar R. Brown, both of Peru, for appellees.

BLESSING Judge.

This action was begun by the appellant to collect the balance due on a note of $860, and to foreclose a chattel mortgage securing said note, both of which instruments were signed by all of the appellees. To appellant's complaint the appellees filed an answer of general denial and a second paragraph alleging total failure of consideration, partial failure of consideration, breach of implied warranty, breach of express warranty and violation of plaintiff's guaranty. The appellees also filed a counterclaim in which they alleged that the note sued on was given for the purchase price of certain chattels, and charged that appellant had breached a warranty of the goods sold and demanded damages including special damages pleaded, in the sum of $1,500. The case was tried before the court without the intervention of a jury and the court found against the appellant on his complaint and for the appellees upon their counterclaim and entered judgment in favor of appellees in the sum of $300.

A motion for new trial was filed by the appellant, which was overruled and this ruling is assigned as error in this court. The specifications in the motion for new trial relied upon are:

1. That the decision of the court is not sustained by sufficient evidence and is contrary to law.

2. For error in the assessment of the amount of recovery, the recovery by the appellees being too large.

3. For error in the assessment of the amount of recovery by the plaintiff, the recovery being too small--that is, there was no recovery on the complaint.

The record discloses that on the 17th day of June, 1939, the appellee Dudley E. Shultz purchased from the appellant ten head of dairy cows for the consideration of $850, and executed his note and the mortgage sued upon for the purchase price of said cows and a trucking bill of $10. The appellees David D. Shultz and Sadie I. Shultz are the parents of the appellee Dudley E. Shultz and they signed the note and mortgage as sureties. The mortgage covered not only the cows purchased from appellant by the said Dudley E. Shultz but also ten cows and other property owned by said sureties. The cows purchased from appellant were taken to the farm of David D. Shultz and there intermingled with the dairy herd owned by said sureties. At the time of the purchase of said cows, it was agreed by the appellant and the appellees that one-half of the milk check from all of the mortgaged cows and the proceeds from the sale of the calves from the cows purchased from the appellant should be applied to the purchase price.

Within two to four weeks after the purchase of said cows one of them became sick and it was noticed that she had a festered udder. Within a short time after this situation arose, another of the cows went bad and it was finally determined that the cows purchased from appellant were infected with a disease known as garget and this infection spread throughout the entire herd, including the cows owned by David D. and Sadie I Shultz. There is evidence to the effect that when the infection manifested itself the cows so infected gave ropey and stringy milk; that it soured before it could be sold and that the quantity which the cows first gave greatly decreased. Appellees contend, and this is the basis for their counterclaim, that at the time the cows were purchased the appellant expressly warranted said cows to be first-class dairy cows and that they would each produce six gallons per day. The appellee David Shultz in support of the above claim testified as follows: "He (Teter) said these cows would have to be as he recommended them; first class dairy milk cows and six gallons a day they would give." It is further contended by the appellees that there was a promise upon the part of appellant to accept the return of any cow that went bad. Dudley E. Shultz testified as follows "He (Teter) said whenever a cow was bad all I had to do was to notify him and he would come and get the cow or have me bring her back." When the cows began to give ropey and stringy milk and the milk became unmarketable an investigation was begun to determine the cause. The barn and dairy implements were examined by agents of the creamery purchasing the milk, and it was finally suggested that it might be due to the condition of the cows. It was then that the cow that had a festered udder was discovered and upon this discovery the appellant was notified both by mail and by word of mouth concerning the condition of some of the cows. Appellant finally came to the Shultz farm and there were several return visits throughout the fall months and into December of 1939. In December, he told the purchaser of the cows that they were suffering from garget, that he had had experience with it and that the thing to do was to feed them saltpeter. He prescribed the amount to be fed and following the administration of the treatment the milk cleared up for a time but there was no cure effected, and when the saltpeter was not fed the cows continued to give ropey and stringy milk and the same soured and was unmarketable. In February of 1940 a veterinarian was called in, and after an examination he diagnosed the disease as that of garget, disclosed that it was infectious and that it would probably go through the entire herd. During the visits of the appellant to the Shultz farm effort was made to secure an adjustment from the appellant but he refused to make any settlement. He insisted upon the payment of the mortgage and said that if the purchaser would pay the indebtedness that he would make the cows right. The appellee Dudley E. Shultz refused to pay the mortgage and upon the 10th day...