Wells v. Welch
| Decision Date | 10 August 1920 |
| Citation | 224 S.W. 120,205 Mo.App. 136 |
| Parties | C. J. WELLS, et al., Respndent, v. JOHN WELCH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dent Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Clyde C. Cope, J. J. Cope, L. T. McGee, E. W. Bennett and J. M Stephens for appellant.
Wm. P Elmer for respondent.
Plaintiffs sued to recover back the purchase price paid to defendant for twenty-two head of hogs, purchased from defendant, on the alleged ground that said hogs were diseased at the time of such sale. Plaintiffs alleged that defendant "represented and stated" that these hogs were sound and healthy and that plaintiffs relied thereon in purchasing same and had no knowledge to the contrary; that said hogs were in fact diseased and infected with hog cholera from which they soon died and that the defendant knew at the time of such sale that said hogs were infected with hog cholera or some other fatal disease.
On appeal to the circuit court the plaintiffs tried the case and it was submitted on their behalf on the theories (1) of an implied warranty of soundness, (2) an express warranty of soundness, and (3) that defendant was liable ipso facto for selling diseased hogs. The defendant was a stock dealer and had himself purchased these hogs shortly before selling them to plaintiffs. He and the persons from whom he purchased swear that the hogs were healthy and sound and there was nothing indicating hog cholera or other disease. The hogs, however, became sick and commenced dying within thirty-six hours after plaintiffs purchased them. All of them died within a month and the evidence justifies a finding that they died of hog cholera.
Plaintiffs testified that they paid the market price for the hogs and while they were then young hogs they were buying them to fatten in the fall to be used partly for their own meat and the rest be sold for food. Plaintiffs' first instruction is on the theory of implied warranty and told the jury that if defendant sold these hogs to plaintiffs knowing that plaintiffs intended to use them for human food then defendant impliedly warranted them to be fit for that purpose and if said hogs were at that time infected with cholera or other contagious disease from which they died then to find for plaintiffs. If this instruction is the law there is an implied warranty of soundness in every sale of hogs for very few hogs are sold to be used for any ultimate purpose other than food and their fitness for any purpose we can imagine would be equally destroyed by their being infected with cholera or other fatal disease. The instruction is erroneous. There is no implied warranty of soundness and freedom from disease in the sale of hogs. It was so held in a hog cholera case, Galbreath v. Carnes, 91 Mo.App. 512, when the court said that "ordinarily, in the sale of personal property, the rule of caveat emptor applies," and there held that the plaintiff to recover must prove an express warranty. Such is the rule in the sale of domestic animals generally. [Anthony v. Potts, 63 Mo.App. 517; Matlock v. Meyers, 64 Mo. 531; Lindsay v. Davis, 30 Mo. 406.] In the Lindsay case, supra, the court held that "there must be a warranty or fraud to make the vendor of a horse with a secret malady responsible to the purchaser; the purchaser takes the risk of quality and condition, unless he protects himself by a warranty, or there has been fraud on the part of the vendor." It amounts to actionable fraud if the vendor of hogs or other such property knows or has reasonable cause to suspect that they are afflicted with a latent disease likely to impair or destroy their value, and conceals such fact or his knowledge in relation thereto; but there is no actionable fraud even though such animal has a latent disease of which the vendor is non-negligently ignorant, merely because he expresses his belief that such animal is healthy and sound. [Bank of Polk v. Wood, 189 Mo.App. 62, 71, 173 S.W. 1093.]
Plaintiffs' second instruction is also erroneous. It told the jury that if, at or prior to the delivery of the hogs to plaintiffs, defendant told plaintiff that said hogs were all right and in good condition, to find for plaintiff if such hogs were in fact infected with disease. The evidence is that while plaintiffs and defendants were separating the hogs bought and selected by plaintiffs from a large lot of hogs, one of the plaintiffs noticed and called defendant's attention to the fact that one hog in the bunch did not look all right and that defendant then said that hog or those hogs were all right. It will be noticed that the instruction in effect declares that this expression amounted to an express warranty as a matter of law. This expression may have been evidence of a warranty or it may have been a mere expression of the opinion of the vendor. Such is the holding of the cases heretofore cited. A warranty is a contract whereby the warrantor agrees to suffer or make good the loss in respect to the matter warranted. As in all contracts there must be a meeting of the minds and the intention of both the warrantor and warrantee is of first importance. A mere expression of opinion as to quality or soundness of an article, however positive, does not amount to a warranty unless it amounts to an agreement to make good the loss. In Ransberger v. Ing, 55 Mo.App. 621, 624, this is said: In Matlock v. Meyers, 64 Mo. 531, the court...
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