Turner v. Kunde, 51311

• Decision Date: 05 May 1964
• Docket Number: No. 51311,51311
• Parties: John TURNER and Mabel Turner, husband and wife, Appellants, v. Donald D. KUNDE and Jo Ann L. Kunde, husband and wife, Appellees.
• Court: Iowa Supreme Court

Page 196

128 N.W.2d 196

256 Iowa 835

John TURNER and Mabel Turner, husband and wife, Appellants, v. Donald D. KUNDE and Jo Ann L. Kunde, husband and wife, Appellees.

No. 51311.

Supreme Court of Iowa.

May 5, 1964.

Rehearing Denied July 15, 1964.

Stanley, Bloom & Mealy, Muscatine, for appellants.

William B. Norton, Lowden, and Newport, Wine & Schebler, Davenport, for appellees.

THOMPSON, Justice.

Plaintiffs' petition prayed for judgment upon certain promissory notes executed to them by the defendants, and the foreclosure of mortgages securing the notes. The defendants counterclaimed, alleging the sale of certain cattle to them by the plaintiffs, with warranties both express and implied; the breach of said warranties, and damages sustained thereby. Before the trial, judgment was entered for the plaintiffs on their cause of action in the stipulated amount of $13,270.81. The stipulation further provided that no execution should be issued on this judgment, and no mortgage foreclosures had, until the trial of the issues raised by the defendants' counterclaim. The cause then proceeded to trial upon the counterclaim, with a resulting judgment for the counterclaimants in the amount of $21,294.31. The counterclaimant defendants, the original plaintiffs, appeal. No appeal is taken from the judgment in favor of plaintiffs on the notes. For the purpose of brevity we shall hereafter refer to the counterclaimants, the original defendants, as the plaintiffs; and to the counterclaim defendants, the original plaintiffs, as defendants.

On July 11, 1959, the defendants sold to the plaintiffs 174 head of Oklahoma range cattle. The negotiations and agreements leading up to the sale were entirely oral, except for one writing claimed by the defendants to be a part of the contract to which reference will be made later. The plaintiffs had some unused pasture land which they desired to lease; but the defendants, through John Turner, who spoke and acted for both and will be known hereafter as the defendant, entered into negotiations with them leading up to the sale of the cattle, which there is evidence to show he told them would do well and make substantial gains upon the pasture. However, the plaintiffs now claim the cattle were not healthy and made no increase in weight although they were fed commercial feeds and grain in addition to having adequate pasture and water. Whether there was a warranty, express or implied, and if there was, whether it was breached are the first questions to be answered on this appeal.

I. We think there was an implied warranty of fitness for the purpose for which the cattle were purchased. They were intended to be feeder cattle, and the entire course of the negotiations shows that the defendant knew this. This means they were to be healthy and capable of putting on weight and making an orderly development to market condition. Section 554.16, subd. 1, Code of 1958, I.C.A.; Breitenkamp v. Community Cooperative Association, 253 Iowa 839, 842, 114 N.W.2d 323, 324.

The defendant contends, however, that there was a specific disclaimer of liability of which the plaintiffs had notice. This is found in a sales slip, which was delivered to the plaintiffs and which unmistakably contains a specific disclaimer of any warranty or other liability. But the plaintiff Donald D. Kunde testified that this was not delivered to him until the cattle were shipped and received. He terms it a 'weigh slip'. His testimony shows that the contract for the purchase and sale had been made and the notes given for the purchase price signed some time before this. Obviously, if this is true, a disclaimer after the agreement had been made could not vary it. Goltz v. Humboldt Livestock Auction, Inc., Iowa, 125 N.W.2d 773, 775.

II. The question whether there was a breach of the implied warranty is a more difficult one. Here we must keep in mind that the warranty was of quality; that is, that the cattle were fit for the purpose for which the purchaser intended them. There is some contention by the defendant that the buyers relied upon their own judgment rather than any representation or warranty by him; but this was at best a jury question. Drager v. Carlson Hybrid Corn Co., Inc., 244 Iowa 78, 84, 56 N.W.2d 18, 22, and citations.

The parties contend at length whether there was sufficient evidence that the cattle, when purchased, were afflicted with two diseases: first, anaplasmosis, and second, a heavy infestation of worms. These facts appear in the record with little, if any, dispute: that the cattle were thin and underfed at the time of delivery which was apparent to plaintiffs; that they were at once placed on good pasture, and an additional diet of commercial feed and grain was supplied, and they had plenty of water available; and that they did not gain in weight in serveral months following. Seventeen of them died; one or two possibly being struck by lightning. Veterinarians were called at various times; but perhaps because of their unfamiliarity with the disease of anaplasmosis, which is not common in Iowa although well know farther south, it was not diagnosed or suspected until October. Tests were made for other cattle diseases which were negative. In October a test was made, apparently from the tissues of a dead steer, which disclosed a 'suspicion' of anaplasmosis. The test also showed worm infestation, but how severe this was does not appear.

The cattle had been observed by Dr. M. O. Pitcher, a veterinarian from Maquoketa, in September. He said: 'The cattle were not in good condition. I would call them thin with the feed available and the grain that they were getting. * * * I would say they were poor doers.' Dr. K. H. Randolph, a veterinarian from Lost Nation, was called to the plaintiffs' farm to inspect and treat the cattle about ten times, beginning on October 25, 1959. He treated 92 cattle there. He testified: 'Some of them looked all right, but there was a lot of them looked awful poorly of course that is a relative them. * * * They looked poorly.'

Dr. Randolph took tissues from a steer that died and had the tests made which resulted in a finding of suspicion of anaplasmosis and a positive finding of worms. Dr. William M. Lynch, a consulting verterinarian from Cedar Rapids, who was called by Dr. Randolph, visited the plaintiffs' farm in November. He says: 'The cattle I was able to examine closely were quite anemic and yellowish or jaundiced. They were thin, they were weak * * * There is no question in my mind but what they had anaplasmosis.'

Dr. J. R. Hasler, a veterinarian from Maquoketa, who had had training and interneship in Kansas testified as an expert. He did not see the cattle. He said that anaplasmosis is fairly common, about like hog cholera is in Iowa, in states farther south. He also testified that worm infection is more common and more severe in Kansas and Oklahoma. Worm infection is harmful to the animal in proportion to its severity. If the animal was infected with worms, ate a lot but couldn't gain weight, this would tend to indicate that he had a heavy infestation of worms. Further: '* * * it would appear in my best judgment that these animals had...