Weede v. Bannon

• Decision Date: 23 January 1954
• Docket Number: No. 39136,39136
• Citation: 265 P.2d 1025,175 Kan. 569
• Parties: WEEDE et al. v. BANNON.
• Court: Kansas Supreme Court

Page 1025

265 P.2d 1025

175 Kan. 569

WEEDE et al. v. BANNON.

No. 39136.

Supreme Court of Kansas.

Jan. 23, 1954.

Rehearing Denied March 15, 1954.

Syllabus by the Court.

In an action to recover the purchase price of a cow, and another item of loss not here material, the record is examined and it is held: The court did not err (1) in overruling defendant's demurrer to plaintiffs' evidence, (2) in overruling defendant's motion for judgment notwithstanding the verdict, and (3) in rendering judgment upon the verdict in favor of plaintiffs.

L. M. Kagey, Wichita, argued the cause, and Max L. Hamilton and F. W. Prosser, Wichita, were with him on the briefs, for appellant.

Joe T. Rogers, Wichita, argued the cause, and Roy L. Rogers, Wichita, was with him on the briefs, for appellees.

PRICE, Justice.

This was an action to recover the purchase price of a cow in the sum of $365, and in addition thereto the difference between the purchase price and the amount which a 'cancerous-eyed' cow brought on the open market, in the sum of $203.95.

From a judgment for plaintiffs in the amount of $365 defendant has appealed.

The facts are simple and, briefly stated, are as follow:

Plaintiffs were partners in the cattle business and operated a ranch at Coats. Defendant was a cattleman at Douglass. On or about September 1, 1951, plaintiffs Bunyard and Hammond (hereinafter referred to as plaintiffs) went to a pasture near Douglass to inspect some cattle owned by defendant. Their inspection completed, they contacted defendant personally and he told them there were sixty-one cows and one bull in the pasture, together with fifty-one or fifty-two calves. It was agreed that plaintiffs would purchase the sixty-one cows for $365 per head and the bull for $400. The calves were to be 'thrown in.' This lawsuit does not involve the bull or calves.

Plaintiffs hired a trucker to haul the cattle to their ranch at Coats and a day or two later he showed up with four cattle trucks at defendant's pasture. Plaintiffs and defendant were present while the cattle were being loaded, as were several other persons. At this time defendant told plaintiffs that there were sixty-three cows instead of sixty-one, that the two additional ones were of the same quality as the others and that plaintiffs could purchase them for the same price if they desired. Plaintiffs accepted this offer. The four trucks were loaded and started down the highway, after which plaintiffs gave defendant their check in payment for sixty-three cows at $365 per head and the bull at $400. Plaintiffs had not as yet counted the cows.

Upon arrival at plaintiffs' ranch the cattle were unloaded and counted, at which time it was discovered there were only sixty-two cows and that one of them had a 'cancerous eye.' Plaintiffs immediately notified defendant of these facts, but attempts to negotiate the matter failed. The 'cancerous-eyed' cow, not being fit to remain with the herd, was sold by plaintiffs on the open market for $161.05.

This action was brought to recover $568.95, the same representing $365 for the missing cow and the loss, $203.95, on the 'cancerous-eyed' cow.

The case was tried by a jury which returned a verdict for plaintiffs in the sum of $365. No special questions were submitted to the jury, but it is conceded by the parties the verdict was for the value of the missing cow.

Defendant's motions for judgment notwithstanding the verdict and for a new trial were overruled. Judgment was entered upon the verdict and defendant has appealed, specifying error in (1) the overruling of his demurrer to plaintiffs' evidence, (2) rulings and instructions to the jury, and (3) the overruling of his motion for judgment notwithstanding the verdict.

In passing, it is noted that defendant does not specify as error the order overruling his motion for a new trial. That being ...